§ 3.7 p.m.
§ Read a third time.
§ Clause 2 [Effect of the exemptions in Part II]:
Lord Lucas moved Amendment No. 1:
Page 2, leave out line 31.
§ The noble Lord said: My Lords, if it does not trouble the noble and learned Lord, Lord Falconer, too much, I should like further to shorten our proceedings today by speaking not only to Amendment No. 1 but also to Amendment No. 7. My point on the two amendments is the same.
§ The Bill will come into force in 2005. That is also the year when we are promised that we will have full electronic government. Other Bills that have been before us this Session—notably those coming out of the Department of the Environment, Transport and the Regions—have made full provision for the coming electronic nature of government and of government information. The Bill, which is all about information, still does not.
§ In these two amendments I offer two ways in which the Government can remedy that defect. Amendment No. 1 removes the inability of an applicant to receive information in electronic form if it is information which is already published in some other form—in other words, just because some ancient statute prescribes that information should be published in writing, and that is what the public authority does, there will be no right to receive it in electronic form. The other way is to put something in the statement of good practice to make it clear that, by the time the Bill comes into force, we would expect information generally to be made available in electronic form.
§ The Government promise a great deal in this area; indeed, they have always done so. However, as the noble Lord, Lord McIntosh, will confirm, they still do not send Answers to my Parliamentary Questions by e-mail. I hope that, one day, the Government will get around to fulfilling the promises they have made. At the very least, they ought to be consistent in their promises. I beg to move.
§ Lord Mackay of Ardbrecknish
My Lords, I have a great deal of sympathy with the amendments tabled by my noble friend, who certainly knows a thing or two more than I do about e-mail, the Internet and so forth. He is quite right to pursue this issue. Furthermore, he is right to point out that we have not seen a great deal of joined-up thinking across government on this. For example, when we debated yesterday the Political 818 Parties, Elections and Referendums Bill, we exposed the fact that electoral registers will not be available in a unified form on e-mail for the commencement of the Bill next year, even though they form an important part of how the provisions of the Bill are to operate. That provides another example of the point that my noble friend seeks to make here.
If the Government are serious about moving into the e-commerce age—we were told constantly that they were serious when we dealt with the Electronic Communications Bill covering e-commerce—they must ensure that they themselves have entered the electronic age.
§ Lord Falconer of Thoroton
My Lords, perhaps I may deal first with Amendment No. 7, which refers specifically to communication by "electronic means". The noble Lord quite fairly indicated that he covered this matter at earlier stages of our deliberations on the Bill. We responded to his points and I fear that my answer today may be quite similar to previous responses that he has received.
Amendment No. 7 deals with the code of practice. The code will provide guidance to public authorities to meet their obligations under Part I of the Bill. Clause 11 already puts clear duties on authorities to comply, as far as is reasonably practicable, with the applicant's expressed preference for communication. This will include the provision of information by electronic means. Thus there is no need to include any specific reference to the provision of information by electronic means so far as concerns the method of response to requests for information.
It is worth remembering that a wide range of public authorities will be required to comply with the provisions of the Bill. The figure of 50,000 such public authorities was given on a previous occasion. Some of those bodies will be very small indeed, while some may be comparatively poorly resourced as regards information technology. It would be inappropriate to make electronic or any other means of communication a recommended method for communicating information under the terms of the Bill. The Freedom of Information Bill is extremely important, but for many of those 50,000 public authorities, the delivery of their mainstream activities will be even more important.
Each authority must do what is reasonably practicable, taking into account its individual circumstances. It may be that the noble Lord has in mind the importance of encouraging the electronic information age. Indeed, he has made that specific point clear. That is, of course, a matter which is close to the Government's heart, as the noble Lord, Lord Mackay of Ardbrecknish, pointed out. Furthermore, I believe that we hold a commendable record in the area. As the noble Lord is no doubt aware, Clause 19 relates to publication schemes that will provide the vehicles by which proactive disclosure is required. Publication schemes must specify the manner in which information to be made available proactively by the authority is to be published. The information commissioner must approve such schemes. Therefore the means by which 819 authorities make information available in accordance with the publication schemes is a matter over which the commissioner will have direct control.
If the information commissioner thinks that an authority is not making appropriate use of electronic communication in a given set of circumstances, she can require the authority to include the necessary provisions in its scheme. That would seem to be the most appropriate way to ensure that the intention behind Amendment No. 7 is met. I hope that the noble Lord will find this response to be of assistance as regards Amendment No. 7. Although the means may be different from that which he has proposed, the intentions are similar.
Amendment No. 1 seeks, in effect, to remove Clause 21 from the absolute exemptions. This clause refers to information that is already available through other means. The Bill concerns freedom of information. If that information is already available by other means, and the question of whether such information has been made readily available is a point on which the information commissioner can rule, then there is no need to address it under the terms of Clause 2. For that reason, I believe that it would be inappropriate to set down anything other than an absolute exemption for Clause 21.
I hope that my remarks have been useful to the noble Lord and that now he will feel able to withdraw Amendment No. 1 and not move Amendment No. 7.
§ Lord Lucas
My Lords, I believe that that is the best response that I am going to get here. I draw a little comfort from the point made by the noble and learned Lord as regards the powers of the information commissioner. However, I do not draw much comfort at all from his proposition that, in 2005, a number of public authorities will still be poorly resourced as regards information technology. His noble friend mentioned that some doctors would still not be using computers by that year. I do not know of a school which does not already have 2,000 computers in place. Similarly, I do not know of a doctor who is not well advanced in the use of information technology, employing it increasingly for medical diagnosis, checking on the side-effects of pills and so forth. I believe that the noble and learned Lord may be a little out of date on the capabilities of public authorities—or at least I hope that he is.
If the noble and learned Lord is truly suggesting that in 2005 we shall still have public authorities that are not well provided for in information technology, would he let me know which authorities are so affected? Perhaps I might then have a go at doing something about the situation. Otherwise, I shall assume that the noble and learned Lord is simply less well informed than is usually the case.
I shall withdraw the amendments. I hope that, in this instance, the Government will live up to their fine words. With that hope, I beg leave to withdraw the amendment..
Amendment, by leave, withdrawn.
§ 3.15 p.m..
§ Clause 15 [Special provisions relating to public records transferred to Public Record Office, etc.]:
Lord Falconer of Thoroton moved Amendment No. 2:
Page 9, line 10, after ("is") insert ("expressed to be").
§ The noble and learned Lord said: My Lords, in moving Amendment No. 2, perhaps I may speak also to Amendment No. 8. These are technical amendments, consequential on amendments tabled on Report by the noble Lords, Lord McNally, Lord Lester of Herne Hill and Lord Goodhart, to which noble Lords agreed. They help to clarify the relationship between Clause 2 and those provisions in Part II which deal with the duty to confirm or deny that the requested information is held. I beg o move.
§ On Question, amendment agreed to.
§ Clause 35 [Formulation of government policy, etc.
Baroness Whitaker moved Amendment No.3:
Page 21, line 4, at end insert—
("() Information consisting of—
- (a) scientific, medical or technical data,
- (b) the analysis of such data, or
- (c) the opinion of a scientific, medical or technical expert as to the interpretation or significance of such data or analysis,
§ The noble Baroness said: My Lords, in speaking to Amendment No. 3, I should say, first, that the Bill is now much improved. When one works through the way in which the Bill is to operate, there is a kind of groundswell towards public access to the factual basis of decisions, which is capable of being translated into the culture of change which my noble and learned friend presaged earlier. However, this process remains tortuous. It is not easy for the citizen to follow and particular concerns have been expressed about areas such as scientific facts and their analysis, on which can turn life and death.
§ This amendment would exclude scientific data, analysis and opinions from the scope of Clause 35(1)(a), the government policy formulation exemption clause, along with the related exemptions in Clause 36. This amendment is more limited in its scope than previous amendments tabled at earlier stages. It applies only to factual information which is scientific, medical or technical. However, it goes beyond the data themselves. It applies to data, the analysis of data and expert opinion on the interpretation or significance of the data or analysis. In effect, those are the three ingredients that go into a published scientific paper. Government scientists may also offer advice on the policy that should be adopted in the light of findings. The amendment does not extend to that advice. It is limited to scientific opinion on the significance of the data.
§ Thus, a government scientist looking at data on the outbreak of BSE might recognise that the disease was continuing to strike, despite the fact that controls had been introduced. He might suggest that the 821 implication was either that the controls were not being properly applied or that the disease was being transmitted in a previously unsuspected manner. All those implications would be open to disclosure as a result of this amendment.
§ I think, but would be relieved to be corrected, that the so-called "harm test"—or, as the noble Lord, Lord Goodhart, put it, a "prejudice test in all but name"—as now achieved in the Bill, would not necessarily bite on a particular document—for example, our scientists' paper—if the Government believed that there was a public interest in ensuring that all the ingredients of their internal deliberations remained confidential to allow for the free exchange of views. In the same way, a report on vaccine damage which dealt only with the possible risks of the vaccine to individuals and not with the aggregate benefits might also fall into this category.
§ The amendment reflects the concerns expressed by the national Consumers' Association and the Freedom of Information Campaign. Without it, can my noble and learned friend persuade us that there will be a true right to the scientific, technical and medical data analysis and interpretation on which turn such crucial political decisions?
§ Lord Lucas
My Lords, Amendment No. 4 in this group stands in my name. The amendment seeks to write into the Freedom of Information Bill words which are contained in the code but which the Government have omitted from the Bill. There is a lot to be said for doing our best to make sure that the Bill is at least as good as the code. This is one respect out of several, I am sad to say, where the Bill falls short of what is contained in the current code.
The noble and learned Lord, Lord Falconer, has been kind enough to write to me twice on this subject. In his latest letter he has clearly set out how he sees the difference between fact and analysis. I hope that the noble and learned Lord will not object if I quote from the letter.
§ Lord Lucas
My Lords, the letter states:At one extreme, analysis may be no more than separating a fact into its component parts, tabling and perhaps statistically comparing them. Where such an exercise does not, for example, require any assessment of the relative weight or merit of the information, it would in my view be difficult for a public authority to make the case that such analysis should be withheld…At the other extreme, the analysis of facts will require a public authority to determine or attribute a weight to the whole, or one or more component parts, to compare and contrast the merit of one part relative to another or to speculate on assumptions which may underlie or be evidenced by any statistical comparison. In such a case, it seems to me that the 'analysis' becomes much less dispassionate and is closer to opinion than fact".I read that to say that if the noble and learned Lord were presented with a scientific paper, he would fillet it. He would leave in the tables, but anything which constituted the application of a lifetime's accumulated expertise to those facts would be eliminated. It would 822 be opinion and therefore would not be freely available to the public. That is a terrible state of affairs. It would certainly have caused a great deal of difficulty if this had been the practice when we were faced with BSE and we were hoping that this new Bill would allow us to avoid its main consequences.
It is quite clear that the wording of the code encompasses the idea that the analysis of factual information by someone who is equipped to do so, rather than by someone providing mere speculation, is an integral part of that information being made understandable to the general public. If we have only a table of the results of some medical experiment and we are asked, as members of the public, to draw conclusions from it, we are set at a great disadvantage. We are deprived of the expertise of researchers, perhaps of the Chief Medical Officer or of someone who understands what is going on. That is not the way in which information should be treated and viewed.
I hope that the noble and learned Lord will reconsider this issue. At an earlier stage he described statistical information by sending me extracts from papers containing statistics. The extracts did indeed contain statistics, but they also contained a good deal of building on those statistics and drawing conclusions from them. Those statistics related to crime in a particular area of Britain and were being put forward to support a case for CCTV cameras in the area. Statistics are fine, but unless the arguments about what has been achieved elsewhere with CCTV cameras, the relevant statistics in other parts of the country and the comparisons and conclusions to be drawn from that are set out, you are left with a meaningless collection of data. People are then at a great disadvantage in understanding what the Government are at and in trying to reach the right conclusions, which is one of the underlying purposes of the legislation—at least, I believe it to be one of the underlying purposes of this legislation.
I hope that even at this late stage the noble and learned Lord will reconsider and accept either the amendment of the noble Baroness, Lady Whitaker, which is admirably succinct, clear and limited in its objectives, or my more general call for this matter to be put back onto the basis which exists in the code at the moment. That basis will not exist unless we make some amendment to this particular aspect of the Bill.
§ Lord Archer of Sandwell
My Lords, my noble friend Lady Whitaker and the noble Lord, Lord Lucas, have focused our minds on the dangers of exempting from the right to disclosure a wide category of information without differentiating between the various kinds of information and the various situations in which the question may arise. Information relating to,the formulation or development of government policy"—the words of the Bill—may concern a problem which falls to be addressed, what was said about it by someone, who provided the information, what statistics exist or how they may be analysed. The prejudice, if any, occasioned from disclosure of those various kinds of information in those various kinds of circumstances will be very different.
823 The prejudice arising from disclosing to a totally unsuspecting public the first intimation that there may have been an outbreak of infected beef will be quite different from disclosing whether the number of cases is increasing or decreasing. If it is argued that it does not matter because everything is to be subjected to the balance of the public interest test in Clause 2, I hope that my noble and learned friend and the noble Lord, Lord Goodhart—both of whom have deployed that argument in previous debates—will forgive me if I say that that may require rather careful scrutiny.
Leaving aside the ministerial override in Clause 52—which we will debate later, but which, in any event, dulls the edge of that argument—I believe that it runs together a number of issues which should be considered separately. First, if there is no realistic danger that the disclosure of a particular category or sub-category of information would cause harm, then it ought not be in an exemption at all. The question of harm tests would not then arise and there would be no need for a balancing assessment under Clause 2. If there is a potential danger that its disclosure might cause harm, it should be subjected to a harm test. I do not believe that that is identical to the balancing of public interest in Clause 2.
The argument of the noble Lord, Lord Goodhart, in particular, appears to be—I hope I paraphrase him correctly—that it does not matter whether there is a prejudice test in a specific clause defining an exempted category because, even if the information in question falls within the exemption, the balancing of public interest is identical with the prejudice test. I wonder whether his rather cheerful optimism is justified.
Let us suppose that, in applying the public interest test, the Government were to argue, "We agree that there is no specific harm which would be occasioned by disclosing this particular information, but we believe that there is a public interest in maintaining the integrity of this whole category of information. It would do no harm to disclose the results of the tests conducted on this beef herd by this veterinary surgeon, but it might inhibit vets from passing on to the Government the results of their tests on other occasions".
The public interest test may well exclude from the right to disclosure information the disclosure of which would cause no specific harm because, it may be said, there is a public interest in maintaining the principle. That is not an academic supposition; it is an argument that has been used by Ministers in the course of our debates on the Bill.
§ 3.30 p.m.
§ Lord Goodhart
My Lords, I am grateful to the noble and learned Lord for giving way. He is right. The public interest test could result in a decision against disclosure on the grounds, not of the consequences immediately following the disclosure of the particular facts of that case, but from the wider harm that might be done, for instance, by making it harder to obtain information in subsequent cases.
824 The flaw in the noble and learned Lord's argument is that that point could equally be raised where there is a prejudice test. The prejudice does not have to be absolutely specific to the information the disclosure of which is sought; it could apply also to a wider harm that would be caused consequentially on disclosure of the particular facts of that case.
§ Lord Archer of Sandwell
My Lords, it might be. If I were drafting the Bill afresh—which, ipso facto, I shall not be allowed to do—I should want to make the distinction between those two tests very much clearer. But the psychology—the way in which someone's mind would work in addressing those two tests—might be very different. I shall argue that it might be too easy to introduce the test about maintaining the integrity of the whole category.
Perhaps I may give two instances where that has been cited by Ministers in the course of debates. Addressing this question in Committee in another place, my honourable friend David Lock, said:It is generally acknowledged that the Government must have time and space to evaluate policy options. That view is shared by all Committee members. The premature disclosure of information in those areas can only hamper, and in some—perhaps even most—instances, prejudice the effective conduct of public affairs. It follows that, for a significant proportion of the information falling into that category, disclosure will never be justifiable, even under a harm test … certain categories of information will always prejudice the effective conduct of public affairs".—[Official Report, Commons, Standing Committee B: 27/1/00; col. 293.]On 24th October, my noble and learned friend said that the amendment then under discussion,would mean that the difficult questions, the uncomfortable options and unthinkable scenarios would not be debated as frequently or as clearly. Governance would suffer.That is why a class exemption rather than a harm test is the right way to achieve a balance for good and open government".He went on to say:Cabinet papers and minutes would always be likely to prejudice the effective conduct of public affairs".—[Official Report, 24/10/00; cols. 282–3.]Even where there is to be a public interest test, the category exemption is not the same as the harm test. That is a point of view, but it is certainly not the same as arguing that because of Clause 2 we already have a harm test.
It is too easy for a government or a public authority to decide that disclosing information in a particular category is always against the public interest. Some of us believe that the Government should have to undergo the discipline of actually directing their mind to the harm that would result from the disclosure of the particular information in question; or at least, where they seek to exclude by category, that the definition of that category should be subject to careful scrutiny, as my noble friend seeks to bring about.
What is certain is that, for that reason, a balancing of public interest is not a complete substitute for a harm test. That was the argument of my noble and learned friend himself. The object of the amendment is to compel Ministers and public authorities to focus their minds on the question of whether disclosure would occasion a specific form of harm. To argue that 825 that exercise is superfluous because there is always a balancing of public interest at the end of the course is to circumvent the whole scheme of the Bill. If that were the whole test, we should not have needed to trouble with all the clauses defining the exemptions.
If the Bill is to achieve its objective, a request for information should be considered in three stages: first, does it fall within a category of information which has a potential for causing harm—we should define the category with some care; secondly—and only if it does—is there some specific harm which may be caused in this particular instance; if so, thirdly—and only then—where does the balance of public interest lie? My noble friend's amendment is directed to the first of those questions. It is on that question that the debate should focus.
Perhaps I may seize this opportunity—since it will be my last opportunity in the course of our debates—to thank my noble and learned friend for the care with which he has addressed our arguments throughout and for his unfailing courtesy.
§ Lord Lester of Herne Hill
My Lords, I apologise to the House for the fact that, for reasons given by the Select Committee on Science and Technology, air travel and health, I shall be even more difficult to listen to than normal. If at some point I choke, the House will realise that that is not on argument, but for other reasons! I should like to try to explain, for the last time I am sure, why I believe that the Bill as it stands now provides a proper constitutional and legal framework for balancing the competing public interests. My starting-point is Article 10 of the European Convention on Human Rights, which guarantees the right to free speech, subject to necessary exceptions.
Article 10 does not segment information and ideas into little categories. What it does is to treat all information and ideas as being the subject matter of the right to freedom of communication and the receipt of information and ideas. It then subjects that right to necessary exceptions. Those exceptions are scrutinised carefully as exceptions to a fundamental right, using the well-known principles of proportionality.
The other relevant convention right in Article 8 is to personal privacy, which is one of the exceptions that has to be balanced against free speech. Again, it does not seek to segment the subject; it balances these two fundamental rights using proportionality. So if we had no freedom of information Bill but simply the European Convention on Human Rights as our framework, the information commissioner/the Data Protection Commissioner, being the same person, would be balancing free speech on the one hand covering information and ideas against personal privacy on the other.
But the great weakness of Article 10 as a touchstone is that it has not been interpreted by the European Court of Human Rights yet as giving a general right of access to official information. So, although it applies to the balance between free speech and a fair trial, free 826 speech and copyright, or free speech and official secrecy, it does not guarantee a positive right of the public to government information.
One of the most important things that we have achieved in this House in relation to the Bill is that we have repaired the weakness in Article 10, effectively by writing in to Article 10 a right of public access to information and ideas—not subject to particular categories, but subject only to necessary exceptions. There are two kinds of exceptions: those that are absolute, where there is no balancing, and those that are qualified; for example, those that we are considering at present under Clause 35, which are not absolute but are subject to the public interest test.
It will not, ultimately, be for the Minister, for myself, for the noble and learned Lord, Lord Archer of Sandwell, or, indeed, for the Campaign for Freedom of Information to decide what Clause 2 means: it will be a matter for the information commissioner and, in the end, for the courts. I find it inconceivable that the information commissioner and the courts will apply a different standard to the freedom of information legislation from that to be applied to the Data Protection Act, which is the other side of the coin. It is possible that the Minister will say, as the Home Office will probably require him to say, that he does not necessarily accept everything that I say—I understand why he will say that. Thank heavens it will not be left to him, the Home Office or me to decide the matter. It will be a question for the judges to decide.
I find it inconceivable that the proportionality principle will not apply. There is no way in which that test is other than a harm test—a substantial harm or substantial prejudice test. What are the information commissioner and the courts doing when they weigh the right of access to government information against necessary exceptions? They are weighing whether there is a sufficiently substantial prejudice or harm to another facet of the public interest to justify, on an objective basis, curtailing the right of public access to information.
The noble Baroness, Lady Whitaker, and the noble Lord, Lord Lucas, both of whom deserve our gratitude for raising such issues in these amendments, are seeking to carve out as specially not capable of being qualified and balanced, information or analysis of particular kinds. I have great sympathy with what they seek to do. In the kind of cases covered by these amendments, I have no doubt that the Government would have a particularly hard time in justifying the withholding of the information for the reasons that they have given—and which I am sure other Members of the House will give—especially in the scientific area where there will be an overwhelmingly strong case in favour of disclosure.
In answer to the noble and learned Lord, Lord Archer of Sandwell, I also have no doubt that the Government would have an extremely hard time justifying the non-disclosure of whole categories of information on a hypothetical future basis, just as we found in the courts in the field of public interest 827 immunity when what were called "class claims" were made. In the end, the courts said, "The game is up. You can't simply have very broad categories of information whose disclosure is completely and absolutely immune from disclosure in the circumstances of a particular case".
I apologise to the House for having taken so long with my remarks. As for some of those who have been strongly critical of those of us who support the general shape of the Bill as it now appears before us, I really believe that they continue not to understand that the terms of engagement are radically altered. The Home Office will deny that that is so; it will say that these changes are minimal. The Home Office will instruct its counsel in particular cases to argue the contrary, as is its right. However, it will be contrary to the whole of the decided case law of the Court of Appeal and of the House of Lords in a whole string of recent cases if those courts do not adopt the liberal principles that I believe we have succeeded in writing into the Bill.
As to the merits of the particular amendments, one awaits the Minister's response before forming a judgment. I believe that the object of the amendments would in fact be achieved in the way in which the issues are hammered out on the anvil of adjudication, if necessary. I very much hope that the Minister and his colleagues will have had that conversion, as will their officials, to the new culture that will make such disputes much rarer than would otherwise be the case.
§ Lord Lucas
My Lords, does the noble Lord agree that it was his amendment that placed subsection (4) in the Bill and that all my amendment seeks to do is to change, in a small way, the scope and emphasis of that amendment? I do not see that that qualifies for all the criticisms that the noble Lord has just made of me.
§ Lord Lester of Herne Hill
My Lords, I agree. I have not criticised the amendments; indeed, I hope that I made that plain. I sought to place both amendments into a context and to repeat the argument that my noble friend Lord Goodhart put forward on the previous occasion; namely, that the changing of a constitutional framework transforms this into a Freedom of Information Bill of which we should all be proud.
As shall not be speaking again, perhaps I may also add my thanks to the noble and learned Lord, Lord Falconer, and his colleagues for having been open-minded enough to accept these changes.
§ 3.45 p.m.
§ Lord Winston
My Lords, I rise tentatively to support my noble friend's amendment. Perhaps I may ask for a little clarification from my noble and learned friend the Minister. The noble Lord, Lord Lucas, has raised quite an important issue. Certainly to publish part, but not all, of a scientific paper can be very seriously misleading. There is an issue here, especially as regards scientists, about not publishing the discussion on data that is generated during scientific investigation. The best way for me to illustrate the 828 dangers involved is to put forward an argument relating to a particular case that happened a few years ago.
Noble Lords will remember the publication on Dolly the sheep regarding the cloning of this animal in Scotland. Because the paper in which that information was published did not allow for discussion, the consequence was extraordinary and adverse publicity for what was a very important scientific achievement—publicity that has clouded a whole area of reproduction and developmental medicine. Had such discussion been included, it would have been very clear from the scientists' views based on their best evidence that the cloning of a human being—that is to say, reproductive cloning—would have been quite impossible. If the Government do not publish the whole data and the intention is to fillet papers, it seems to me that there may be a serious issue here that I hope my noble and learned friend can address in his response.
My other concern relates to the fact that much scientific research is carried out on the basis of funding that usually comes from one of our research councils, such as the Medical Research Council, or one of the other funding councils. It is often linked—it may or may not be through direct government funding—with other independent peer review funding because most scientists work with more than one single budget. Such grants are given as part of the public purse, not least because there is a public interest in devolving these grants to the individual scientist. Therefore, there is a serious question about withholding that information, except in the most extreme circumstances. It seems to me that that would clearly not be within the spirit of this legislation.
§ Lord Brennan
My Lords, I have asked the forgiveness of my noble friend Lady Whitaker for not being present in the Chamber to hear her opening remarks, because I was unavoidably delayed. I also apologise to the House. My noble friend has given me a broad outline of what she said. I rise to express my support for the amendment, which I believe illustrates an issue of great importance at the close of this freedom of information debate; namely, the way in which the Government will treat the scientific and technical data (and the analysis of it) that they possess.
On 20th July of this year the Chief Scientific Officer to the Government, speaking on behalf of his colleagues, issued a statement in which he declared it to be their wish that their scientific material should be disclosed to the public. There is always the proviso of a very good reason why not, but the general intent was that the public should know. On 26th October the Minister of Agriculture, Fisheries and Food in the other place said on some half dozen occasions that he wanted the public to know about the scientific material on BSE.
I am sure the House will agree that those two approaches were entirely commendable. They were not afflicted by any legal concerns. They were made without having to take into account the existence or purpose of a Freedom of Information Bill and their 829 intent was obvious: within reason, what the Government know the public should know. In our society we are reaching a period of great complexity. The example of the BSE tragedy has horrified us all. The public debate on GM crops persists. The debate yet to come on human cell research will produce the most profound concerns for us all. In any of those debates or concerns do we not want the public to know what they ought to know in order to make their own decisions?
From what my noble friend Lord Winston said, I have the impression that what the Chief Scientific Officer said represents the views of science. I am sure scientists feel that they serve the community and that if they give information to the Government it is given for the benefit of the community. In time to come we shall have a triangle of power in these areas: government, commerce and the world of science and medicine. All three are not above us; they serve us. I can think of no cogent reason why scientific and technical data should not be in the public arena.
At the end of this debate it would be appropriate for my noble and learned friend the Minister to reassure the public that this Bill does not constitute some new barrier between them and the Government with regard to information, but is rather a new and effective bridge to ensure that they receive the information. Whatever the Government's view on the amendment, I hope that the Minister will take the opportunity to tell the world outside, "Never mind the Bill; never mind government interest, commercial interest or the amour propre of science, what we know you will know unless there is an extremely convincing reason why you should not".
§ Lord Mackay of Ardbrecknish
My Lords, this has been an interesting short debate. It is one in which those of us who have struggled with the Bill during its various stages have been involved before; namely, the question of the data, facts and analysis that are presented to government Ministers day after day in order to help them reach decisions. I believe that no one in the committee or the House would wish to see made public the mechanics of how Ministers reach their decisions and the papers that flow between them and their civil servants. Sometimes they are made public to the embarrassment of at least some of the parties concerned. However, it would not help the way government reach their decisions for everyone to know that they might read about the issues before them, the options they had and the way they debated them in the newspapers the next morning. No one has argued to the contrary.
However, we are arguing about much of the background material—sometimes that is vital material—on which the Government make their decisions. The noble Baroness, Lady Whitaker, has done us a favour in coming back yet again with another variation of the amendment to try to make it more acceptable to her noble and learned friend the Minister. I am not sure what the noble and learned Lord will say in response.
830 I called the noble Lord, Lord Goodhart, the shadow Minister. Now that the noble Lord, Lord Winston, has appeared in the debate, I shall change that title. We have heard from the surrogate Minister. They come in twins which I gather is one of the problems with fertility treatment. We have heard a definition. I say to the noble Lord, Lord Lester, that I am not entirely satisfied with what he suggested; namely that the courts will decide what the measure means. I prefer Parliament to decide what it means and say what it means, or even the Government to decide what it means and say what it means. Then we would be clear. The people, through Parliament, would make it clear what they want to happen in this regard.
§ Lord Lester of Herne Hill
My Lords, I am grateful to the noble Lord for giving way. I thought that under our constitution it was Parliament that made the law and the courts in their independent capacity that interpreted and applied the law. It is not the function of Parliament to interpret the law; it is the function of the courts to do so.
§ Lord Mackay of Ardbrecknish
My Lords, I shall not try to cross legal swords with the noble Lord. The courts apply the law. They interpret it if they have to, but we ought to make the law crystal clear when we pass it. The less interpretation the courts have to do, the better. I see that the noble Lord assents, so at least we agree on that.
The problem here is the one on which the noble Lords, Lord Winston and Lord Brennan, put their fingers. As someone who a long time ago studied science at a rather lower level than the noble Lord, Lord Winston, I know that scientific data can be almost meaningless, at least to everyone bar a small number of experts. It is the analysis of the data that is hugely important. The analysis of the data is important for Ministers who tend not to read the data but the analysis of the data. Occasionally they will study the data to see whether they can work out whether the analysis is correct. Great scientists do not do that; they read the data and then make the analysis. However, there are few scientists in government. That is perhaps a pity. Therefore the analysis is of vital importance. The amendment of the noble Baroness, Lady Whitaker, to which I have added my name, would improve the position.
I am told that the existing open government code of practice is inadequate. As I have made clear, we now agree that an Act is a better way to proceed. The existing open government code of practice states that,the facts and analysis of the facts which the Government considers relevant and important in framing major policy proposals and decisions",should be proactively published. Unless we are clear that not only the facts but also the analysis of the facts will be published as a result of the provisions of the Bill, I suggest to the noble and learned Lord that that will be a step backwards which I am sure he does not intend. I look forward to hearing him accept his noble friend's amendment. If he cannot do that—it is sometimes difficult for government Ministers to accept 831 amendments—I hope that he will at least put on record the simple proposition that it is not just the facts that should be published (because that expression can be narrowly interpreted) but also the analysis of the facts.
When the information is made public and people, and especially newspapers, can study the analysis of the facts, I hope that the debates which take place on the important issues which science will present to us will at least be based on an informed position on the data and that we shall not just be presented with the data and allow every Tom, Dick and Harry to peddle their prejudices. The point of the noble Lord, Lord Winston, about Dolly the sheep was well made. I hope that the Minister will satisfy those noble Lords who have taken part in the debate with regard to the current position of the Bill on that matter.
§ 4 p.m.
§ Lord Falconer of Thoroton
My Lords, in this short debate noble Lords have gone over two pieces of ground that we have often gone over during the passage of the Bill. The structure of the Bill now involves exemptions but also, under Clause 2, provisions whereby the public authority should disclose the information unless there is a public interest in maintaining the exemption.
I do not intend to go over those debates which we have already had on a number of occasions save to make one point in response to the points made by the noble and learned Lord, Lord Archer of Sandwell. I hope that I have made clear on previous occasions— if I have not done so, I make it clear on this occasion— that, in the case of a piece of information to which an exemption applies but which also falls under the provisions of Clause 2, it is necessary for the public authority to consider in each case whether or not the Clause 2 discretion requires disclosure of the document or the information. It has to be considered on a case-by-case basis.
The second issue is of real concern to noble Lords and the Government: the publication of factual and scientific material and the analysis of scientific material. The noble Lord, Lord Lucas, has returned to the point again and again, in particular by reference to the BSE affair. In this House and in government we are all aware of the condemnation in the report of the noble and learned Lord, Lord Phillips, of the culture of secrecy. That is something we no longer wish to see exist.
The Bill has an important part to play but it is worth emphasising that the remarks by the Chief Scientific Officer and the Minister of Agriculture, Fisheries and Food, which the noble Lord, Lord Brennan, mentioned, referred not to the Freedom of Information Bill but to a policy adopted by the Chief Scientific Officer and the relevant Minister which does not depend in any way on the terms of this Bill. I wish to make that clear.
I turn to the specifics of the two amendments. Amendment No. 3 was moved by the noble Baroness, Lady Whitaker. I believe that the Government have already made provision for what I understand to be the 832 concerns underlying the noble Baroness's amendment. It is difficult to see what information would come within the terms "scientific, medical or technical" which would not be covered by the provisions for factual and statistical information already in the Bill. Statistical information in relation to a government decision already taken has been taken out of the harm test in Clause 35 and is now subjected to the prejudice test in Clause 36. There is also a significant steer for public authorities towards the particular public interest which exists in the disclosure of factual information which has been used to provide an informed background to decision taking.
In moving the amendment, the noble Baroness was supported by the noble Lord, Lord Lucas, and my noble friend Lord Winston. They mentioned that the amendment does not extend to cover advice on policy given by government scientists and that it is limited to the scientists' opinion on the significance of the data. This is the analysis point. I believe that it is impossible satisfactorily to distinguish pure analysis of information from advice which is to be given based on that information. The noble Lord, Lord Mackay of Ardbrecknish, made that point. For example, analysis of data could relate to collation of statistical data or the expression of such data in other ways in order that it be more easily understood. The Government believe that it would be exceedingly difficult for a public authority to make a case for withholding this type of information. However, it is important to have protection for the provision of advice to Ministers in order that good governance be maintained. But the kinds of analysis to which I and other noble Lords have referred would, I think, be impossible to withhold in the vast majority of cases.
The noble Baroness also made reference to the Government being able to withhold information if they felt that there was a public interest in all ingredients of their internal discussion remaining confidential in order to allow the free and frank provision of advice. The Government believe that there is a public interest in keeping certain parts of internal discussions confidential for this reason, as reflected in the existence of exemptions in the Bill. However, balancing the public interest is a completely separate exercise to be conducted if an exemption applies. It is this exercise which will ensure that the legitimate concerns of the noble Baroness are met and that, where it is in the public interest, such information as is covered by her amendment will be released. I hope that these remarks reassure the noble Baroness and others who have spoken on this important issue.
With regard to Amendment No. 4, the noble Lord, Lord Lucas, expressed the same concerns as those mentioned by the noble Baroness, Lady Whitaker. I hope that I have dealt with them adequately in my remarks.
Before I sit down—I suspect that this may be the last opportunity to do so—perhaps I may pay a special tribute to the noble and learned Lord, Lord Archer of Sandwell, and the noble Baroness, Lady Whitaker, who have made substantial and influential 833 contributions to the debates in the House during proceedings on the Bill and have contributed significantly to the changes which have been made.
§ Baroness Whitaker
My Lords, this has been an important debate with distinguished contributions from lawyers and others. My noble friend Lord Winston made significant points on matters which go to the heart of the Bill. I thank all who took part. I thank the Minister for his detailed explanation and, as others have said, the courtesy with which he has dealt with our misgivings.
His explanation will be extremely helpful with regard to the interpretation of the Bill by the public. I hope that the noble and learned Lord will support the interpretation that he furnished today with guidance to the public which makes crystal clear the kind of access they have. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 4 not moved.]
§ Clause 36 [Prejudice to effective conduct of public affairs]:
Viscount Colville of Culross moved Amendment No. 5:
Page 22, leave out line 21 and insert—
("any action or decision for the effective conduct of public affairs which the department, Assembly or authority proposes at some future time to take in any case where—
- (i) the information is not exempt by virtue of section 22; and
- (ii) it is reasonable in all the circumstances for the information to be withheld at the time when the request for it is made").
§ The noble Viscount said: My Lords, I thought that I had told everyone that I did not want Amendments Nos. 5 and 6 grouped. I hope that I may be forgiven if I deal with them separately because they are separate points.
§ Noble Lords will recall that as a result of the decision taken quite late in the evening on Tuesday 14th November Clause 36 still provides for the reasonable opinion of a qualified person. We have discussed the provision under Clause 36(2)(c). The noble Lord, Lord Mackay, has joined his name to the amendment. I believe that he also is not clear exactly what we are talking about. It would be easy for the reasonable opinion of a qualified person to take a quite wide view of what would be likely to prejudice the effective conduct of public affairs. Not all of the qualified persons will be of the calibre of my noble friend Lord Williamson of Horton who conceded that, had he still been in his previous office, he would have been likely to fall into that category. I believe that others may not have such a grasp of the overall situation and their duties under this legislation.
§ The difficulty about Clause 36(2)(c) is its breadth. It is worth remembering how this matter originally came about. In the draft Bill before the Select Committee presided over by the noble and learned Lord, Lord Archer, of which I was a member, this matter was part 834 of the decision-making and policy formulation issue which is now dealt with in Clause 35 of the Bill. Since then it has been sub-divided. We have just discussed Clause 35. Clause 36 goes further than anything previously conceived of in Clause 38 of the draft Bill.
The explanatory memorandum that accompanied that Bill said:
Subsection (5) defines a qualified person. For a government department in the charge of a Minister it is a Minister of the Crown. For other government departments it is to be the person in charge of that department. In relation to the National Assembly for Wales it means the Assembly First Secretary. For other public authorities it is to be a Minister of the Crown unless the authority or other person is authorised by a Minister of the Crown".
That is not how it has worked out in the Bill. There is now a much wider range of people either specifically named or able to be nominated by Ministers under the machinery in Clause 36. What will they say is exempt by virtue of subsection (2)(c)?
§ The noble and learned Lord, Lord Falconer, has been pressed continually about that and has given only two examples. One was the premature publication of exam questions. The noble Lord, Lord Norton of Louth, dealt with that thoroughly. The Minister's other example was the premature disclosure of a local planning authority's proposal to list a building, with the implied invitation that the owner would need to hurry up and demolish it before the listing took place. If that is all that the provision is supposed to cover, my amendment would deal with the problem satisfactorily. It would provide an exemption for such legitimate activities of the public authority concerned that would be published in due course but ought not to be published yet, because premature publication would cause damage.
§ Given the Minister's arguments so far, I do not understand how he can resist the amendment. He cannot deny that I have simply translated into general terms the sorts of situation covered by his examples. If he has in mind a wider set of circumstances that ought to be covered by paragraph (c), this is our last opportunity to hear them. If that is the case, it might be best if the Government accept the amendment and move amendments to it in another place to deal with whatever they propose to cover.
§ If the Minister continues to rely on the examples that he has given, it would be wise to constrict the public authority in preventing the publication of information by providing greater clarity in the Bill, not leaving it to the courts. The noble Lord, Lord Lester, has now left, so he cannot tell me anything more about that. We should make clear in the Bill the exemption that we are providing for the benefit of the public authority. The situation is unsatisfactory. The people in charge of the decision will have wide jurisdiction to prevent the public finding out what they want to know. The amendment would help to clarify the situation and to put it in the context that the Minister referred to. I beg to move.
§ 4.15 p.m.
§ Lord Lucas
My Lords, I entirely support the noble Viscount, Lord Colville of Culross. We had an 835 unsatisfactory answer from the Minister on Report. The noble Viscount's interpretation of the clause is entirely reasonable. The wide terms of subsections (1)(a) and, in particular, (1)(b), mean that an exemption is available for almost any information held by almost any public authority at the whim of one of the named individuals. There is no limitation on them and no effective control of them.
The Minister tried to put a different construction on the problem on Report. He said the clause merely provided a helpful restriction on the number of people who could operate the clause, putting the power in the hands of a relatively small number of individuals who would all be upstanding and responsible. He said that the clause would be entirely helpful to the cause of freedom of information.
The crucial distinction between those two views is the position that the information commissioner finds herself in when presented with an appeal against a refusal of access to information as a result of the exemption. It is stated that under the clause the qualified person can determine whether prejudice exists. That is fine, but can they also determine the quantum of that prejudice? Does the information commissioner have to accept that determination? If the qualified person says that the information would cause such prejudice that it should never be released, will the information commissioner be bound by that view, or can she substitute her own view? If she is entirely free to substitute her own view, the clause could do only a relatively limited amount of harm. If, on the other hand, the amount of prejudice is to be determined by the vast array of qualified persons, the clause could do extreme harm to the cause of freedom of information. We got no answer from the Minister on Report. I hope that we shall get one now.
§ Lord Mackay of Ardbrecknish
My Lords, as the noble Viscount, Lord Colville of Culross, said, the examples given by the Minister on Report almost brought noble Lords to the edge of their seats with laughter, particularly the need for a qualified person to be able to prevent potential examination questions being revealed. My noble friend Lord Norton of Louth, who has probably made up more potential examination questions than anyone else in the House, dealt with that. That situation clearly does not need such protection.
We remain worried about the scope to be given to the reasonable opinion of a qualified person. The noble Viscount has done us a favour by coming forward with a modest limitation on that scope. I look forward to the Minister's answer. Perhaps he will give us some better examples this time.
§ Lord Falconer of Thoroton
My Lords, I am grateful to the noble Viscount for raising this important issue. I accept that we have degrouped Amendments Nos. 5 and 6. I shall deal only with Amendment No. 5 at the moment. The Bill provides an exemption for information that would,prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs".836 The amendment would exempt information that would,prejudice, or would be likely otherwise to prejudice, any action or decision for the effective conduct of public affairs which the department, Assembly or authority proposes at some future time to take in any case where
The difference between the existing draft and that draft is quite difficult to detect. It does not for one moment, for example, touch the definition of the qualified person, the number of qualified persons or the role that they perform in determining where the balance lies.
- (a) the information is not exempt by virtue of section 22; and
- (b) it is reasonable in all the circumstances for the information to be withheld at the time when the request for it is made".
The noble Viscount justifies his proposed amendment by saying that it would cover the examples given. It would, so long as the noble Viscount knows what view the information commissioner or the courts would take about the phrase,it is reasonable in all the circumstances for the information to be withheld".In parenthesis, I refer to what the noble Lord, Lord Mackay of Ardbrecknish, said. If one wants uncertainty about what will happen in the future, one should insert a phrase such as,it is reasonable in all the circumstances for the information to be withheld",because absolutely no guidance is given as to how that would be effected.
However, the clause is not intended simply to deal with the two examples that have been given. As was said on the previous occasion that we discussed this matter, the clause has been inserted because 50,000 public authorities are covered by the Bill. From where we sit at the moment, it is impossible to determine the precise circumstances in which it might be appropriate for information to be withheld because in the future that would prejudice the effective conduct of public affairs by a public authority. If there is a case, first, a named individual must say that such a prejudice exists. Then, under Clause 2, disclosure of that information takes place unless the relevant public authority can satisfy the information commissioner that there is a good reason for not disclosing.
The noble Lord, Lord Lucas, asks whether the information commissioner can weigh the quantum of the prejudice. Of course, she can. The information commissioner will have to do so because she is deciding where the weightier balance lies when it comes to Clause 2.
§ Lord Lucas
My Lords, I entirely understand that that is the process through which the information commissioner goes and that the commissioner will make her own judgment of the weight of public interest in disclosure. However, I am anxious to determine that the judgment of the weight of prejudice will be hers and not that of the authorised person, which is the other side of the balance.
§ Lord Falconer of Thoroton
Yes, my Lords. I confirm that that is the position. That is the effect of 837 our present draft. With the greatest respect to the noble Viscount, the effect of his draft is more complicated, more open, more wide-ranging, less restricted and, in my respectful submission, would not deal with the problems that he identified in moving the amendment. Therefore, in the light of what I have said and in the light of the reassurances that I have given in relation to a number of points, I suggest that the noble Viscount does not move Amendment No. 5.
§ Viscount Colville of Culross
My Lords, I have moved Amendment No. 5, so I am afraid that we have to deal with it. I shall now respond to the noble and learned Lord, and I am grateful to other noble Lords who have taken part.
I am afraid that I do not understand the noble and learned Lord when he criticises the test that I have provided. As has now been clearly established—I am grateful to the noble Lord, Lord Lucas, for helping in this matter—in every one of those cases the information commissioner will have to ensure that the prejudice, which of course will have to be disclosed to the commissioner, is weighed against the public interest which is relied upon as part of the exercise in non-disclosure. She will have both parts of the equation in front of her.
Why the noble and learned Lord considers that his draft in paragraph (c) is clearer, better defined, more restricted and more ordered in every possible way than what I have put forward is beyond my comprehension. I do not want to prolong this debate. I understand that the noble and learned Lord does not intend to accept anything. Therefore, perhaps I may suggest to him that some device is produced whereby the information commissioner gives guidance to those 50,000 qualified persons who are to take the decisions.
Such guidance will not be provided under Clause 49 in the annual report or in any special report given to Parliament. It will come in case law. That will be difficult, and I do not understand how it will be achieved because the circumstances of individual cases may well be such that the details on the basis of which the information commissioner has reached her decision cannot be publicised. Nevertheless, some guidance will have to be given about the lines that the information commissioner will draw as to where the qualified person is allowed to exercise the powers that at present are set out in paragraph (c).
I am sure that the noble and learned Lord is listening to what I am saying. I hope that in a moment when I move my next amendment he may have the opportunity to respond to that matter. I believe that guidance in this field will be very important, not only to qualified persons but also to members of the public who seek information. At least they will then gradually build up some knowledge of how the system works and of what the information commissioner is likely to do in relation to the balancing act that will be her copious duty in future.
I am very disappointed that the noble and learned Lord gives no further examples, although I had not expected him to give any. I am afraid that it is clear 838 from reading and listening to these debates that we shall never achieve any clarity in this matter. As I cannot do anything about it, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 4.30 p.m.
Viscount Colville of Culross moved Amendment No. 6:
Page 22, line 21, at end insert—
("(For the purposes of paragraph (c) of subsection (2), the effective conduct of public affairs is not to be regarded as prejudiced or likely to be prejudiced insofar as disclosure of the information would, or would be likely to, result in any member of the public seeking, by lawful means, to influence the public authority in relation to any action or decision which that authority has the power to take.").
The noble Viscount said: My Lords, this amendment covers another aspect of the same point. What is,
the effective conduct of public affairs",
in the minds of 50,000 public authorities? One of the ways in which one can effectively conduct public affairs is by preventing people discovering what one is working on until it is too late for them to make any form of objection. I am quite certain that that is not what the Government intend; indeed, it is the opposite of what they intend. Nevertheless, that will not necessarily be the view of all public authorities.
§ I have in mind an incident in which I was involved not long ago in which a planning decision was being appealed. The planning authority was required under statute to publish—and it did publish—all the material that it had received in the form of advice from officers and others which would lead it to its decision. However, it disclosed that other public authorities which had been consulted, as is required under the procedure, had given a vague and dismissive reply. There was no means of discovering what those other public authorities really thought. The vague and dismissive replies were not open to further investigation. There was no means of extracting information relating to what they had considered, what they had rejected and why they had formed the view that they had. I assume that that was what they considered to be the effective conduct of public affairs. I do not believe that that is the right approach, and I believe that the noble and learned Lord, Lord Falconer, will tell me that I am correct in that.
§ However, let us look at the practicalities of the matter. This subject will arise not only in relation to affairs of state under Clause 35 and the issues which we were discussing a few moments ago; it will arise also in relation to all sorts of small decisions which affect individual members of the public as to their health, their environment, their children's education and all sorts of extremely important matters to them as persons and as families. The decisions do not necessarily hang around very long before they are taken.
§ I want the noble and learned Lord to tell me how the effective conduct of public affairs and disclosure of information about it fit into the timetable of the Bill. 839 The timetable means that a person has to discover that a decision as to the effective conduct of public affairs will be taken by a public authority. Having done so, the request is made and, under Clause 10(1), there are 20 days in which the initial result is to be provided to him, although that can be extended. But that is only the first step.
§ The second step—and this is Clause 10(3)—is that when it comes to the issue about whether or not there is prejudice, which is where the Liberal Democrat amendments to Clause 3 bite, the period of time during which the public authority shall decide whether or not there is, in its view, prejudice is indefinite. There is no timetable at all and your Lordships have only to look at Clause 3 to see that.
§ Eventually the public authority may say that the balance has come down against disclosure. So the person who is anxious to know about the details of the matter says, "I will go to the information commissioner" but, of course, he cannot do that because the first thing that he must do is to go through the public authority's complaints procedure. That is set down under Clause 45(2)(e). Under the procedures organised by the public authority for the purposes of this Bill, there must be a complaints procedure. It is only when that has been completed that the information commissioner can start to look into the matter, because she is previously precluded from doing so by Clause 50(2)(a).
§ How long will that take? Let us suppose that the local authority or the other public authority is dealing with something which is comparatively urgent but, nevertheless, vital to the inhabitants of the area or people otherwise concerned. Will the Bill really give them the opportunity to find out in time what it is that is the basic material on which the decision has been taken? I suggest to your Lordships that it is not.
§ Therefore, I suggest that we need something in the form which I have tabled as Amendment No. 6 on the Marshalled List. That would make it possible for the public to try to influence the public authority, by lawful means of course, in relation to the decision that is to be taken. By implication, that means that the information must be made available in time to do so.
§ I am not sure that this matter has previously been discussed and it is a late stage of the Bill at which to do it. Nevertheless, it is implicit in the way in which paragraph (c) is presently phrased that there is really no recourse for the member of the public who wants information and wants it urgently, because the rest of the machinery of the Bill will provide indeterminate delay and it will not be available in time.
§ I hope that the noble and learned Lord can say something about that because not only will it be of assistance to those who are listening to this debate; it will be of assistance, because it will be in the Official Report, for those who wish to seek information; it will be of assistance to those who are in charge of public authorities and have to make decisions under paragraph (c); and I should have thought that it would be of great assistance to the information commissioner at the early stages, before she has established a code or 840 a jurisprudence of the way in which she will deal with these matters. Therefore, this needs to be addressed by the Government and I look forward to hearing what the noble and learned Lord has to say about it. I beg to move.
§ Lord Falconer of Thoroton
My Lords, the point which the noble Viscount makes is important and it is the first time that it has been raised in the course of our debates. It does not apply only to Clause 36. There is nothing specific to do with that clause. It simply makes the point: what happens when the information is needed urgently? That is the point which the amendment raises.
The position under the Bill is that a public authority must inform the applicant within 20 working days if it is not going to comply with the request. At the same time, if the public interest test applies by virtue of Clause 2, then the public authority must inform the applicant of its determination under that clause or it must indicate when it is going to determine that beyond the 20 days; and if the applicant disagrees with that length of time, the applicant can go to the information commissioner and complain about the length of time.
Obviously, under the Bill there must be a period of time within which the public authority has time to comply with the request. As regards appeals procedures, the noble Viscount is right to say that domestic complaints procedures must be exhausted first—for example, local authority complaints procedures—when there has not been a disclosure. Whether or not there is a provision in relation to those for urgency will depend upon the individual procedure.
The information commissioner's code of practice will say that applications should be dealt with promptly and, if there is good reason why it should be dealt with urgently, no doubt that will be taken into account in determining how quickly to deal with the individual complaint or appeal against a particular ruling by a public authority.
That is as far as I can take it. Inevitably, there must be some period of time within which both public authorities and information commissioners are allowed to deal with the applications. Of course, if the applicant has a particular reason for needing the information urgently, no doubt that will be taken into account when the application is being considered.
§ Viscount Colville of Culross
My Lords, I do not think that it will because, although the noble and learned Lord sets out what is in Clause 10 and says that there must be some test of urgency, there is still the stage which he did not mention at all—the complaints procedure under Clause 45. That must be gone through too and that is in the hands of the public authority itself. There is no timetable in relation to that and it is on the face of the statute that it is only after that process has been exhausted that the information commissioner can come into the picture.
841 There is no guarantee that the person who seeks the information will have been able to overcome all those delays in order to obtain the information before the public authority makes the decision. There is no appeal to the commissioner until all the complaints procedures have been completed. Therefore, the noble and learned Lord has disclosed a very substantial gap in the way in which this Bill will be practicable from the point of view of ordinary people.
Again, it is no use my pressing this matter at this stage, particularly as it is the first time that it has been raised. But I trust that the Government and the information commissioner will apply themselves to the problem which I have tried to adumbrate; in other words, when an urgent decision is required and the procedures need to be very substantially curtailed in order that a decision can be taken upon the matter in time, before the decision is finally reached by the public authority.
§ Lord Falconer of Thoroton
My Lords, I apologise for interrupting the noble Viscount but what I say will provide him with some assistance. The commissioner will be able to hear complaints before the exhaustion of the authority's internal appeals procedure. Urgent cases would fall into that category. But that obviously does not deal with cases in which the 20-day period has elapsed.
§ Viscount Colville of Culross
My Lords, I am extremely grateful to the Minister for that clarification. However, it does not appear to me to comply with Clause 50(2)(a), which states:On receiving an application under this section, the Commissioner shall make a decision unless it appears to him"—which, of course, means "her"—that the complainant has not exhausted any complaints procedure".It appears to me that, if the complaints procedure has not been exhausted, the commissioner will be denied the opportunity to make a decision.
§ Lord Falconer of Thoroton
My Lords, perhaps I can assist the noble Viscount in relation to that. If he reads the remainder of Clause 50(2)(a), he will note,that the complainant has not exhausted any complaints procedure which is provided by the public authority in conformity with the code of practice under section 45".That is a reference to the commissioner's code of practice, which will specify the circumstances in which the local or domestic appeals procedure must be complied with before the commissioner's role comes into play.
§ Viscount Colville of Culross
My Lords, I understand that point, for which I thank the Minister. I do not invite him to say anything further at the moment, but I ask him to listen to my next point. The commissioner would need a code of practice that would enable her to take on board appeals against refusals to disclose in cases of urgency, which have to bypass the complaints procedure. I know that that will be laid down in her 842 own code of practice but, nevertheless, the code of practice will then be applicable to the public authorities, which will have to set up a procedure. She will have to ensure that, where an applicant can make out a case for an urgent decision, the whole process of the complaints procedure would not need to be gone through before her jurisdiction started. I shall leave it at that. The Minister nods his head—I hope to me. I hope that he will ensure that some such provision is included in the code of practice so that public authorities can be required to make timely decisions, or the commissioner allowed to make decisions on their behalf.
In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Clause 45 [Issue of code of practice by Secretary of State]:
§ [Amendment No. 7 not moved.]
§ Clause 53 [Exception from duty to comply with decision notice or enforcement notice]:
Lord Falconer of Thoroton moved Amendment No. 8:
Page 31, line 26, leave out from ("information") to ("that") in line 27 and insert ("which falls within any provision of Part II stating").
§ On Question, amendment agreed to.
§ 4.45 p.m.
Lord Mackay of Ardbrecknish moved Amendment No. 9:
Page 31, line 36, at end insert—
("() Where the accountable person gives a certificate to the Commissioner under subsection (2), the Secretary of State shall as soon as is practicable thereafter arrange for details of the certificate to be drawn to the attention of each House of Parliament.
() In any case where a certificate under subsection (2) relates to a decision notice or enforcement notice which has been served on a Northern Ireland department or any Northern Ireland public authority, the accountable person shall as soon as is practicable thereafter arrange for details of the certificate to be drawn to the attention of the Northern Ireland Assembly.
() In any case where a certificate under subsection (2) relates to a decision notice or enforcement notice which has been served on the National Assembly for Wales or any Welsh public authority, the accountable person shall as soon as is practicable thereafter arrange for details of the certificate to be drawn to the attention of the National Assembly for Wales.").
§ The noble Lord said: My Lords, I can deal briefly with this group of amendments, two of which stand in my name and one in the name of my noble friend Lord Norton of Louth. Before doing so, I thank the Minister for the courteous way in which he has conducted this debate. I also thank other noble Lords, learned and not learned—only because they are not office-holders or have not attended the legal teach-in which we non-lawyers have undergone as we have proceeded with this Bill. I now understand that the most important thing in the law is a balance of "this" against "that".843
§ These amendments deal with the veto that a government Minister is allowed to have on the publication of information. This is a kind of nuclear option for the Government. When all else has failed and they do not believe that it is in the public interest to divulge this information, they are allowed to take the steps outlined in the clause and impose a veto.
§ We had an interesting debate on the last occasion when I suggested that Parliament should be informed of the use of the veto. I shall not quote the noble and learned Lord extensively. However, I am sure that he will agree that he made much of the fact that Ministers could not abuse the veto system because, if they did, Parliament would soon become irritated and would call them to account. I identified a slight problem. I suggested that there was no real means by which Parliament could know that the veto had been used unless they waited for publication in the commissioner's annual report of the use of the veto—perhaps 10 or 11 months following the event. That would not be very satisfactory.
§ I proposed what I freely admit was a fairly elaborate method of reporting to the House and having the House debate the issue before the Minister was allowed to comfortably tuck away the veto in his back pocket; perhaps that was a bit too much. But I have now considered how we can achieve a situation in which the Minister would have to inform Parliament. I have two options, one of which is more elaborate than the other, and my noble friend Lord Norton of Louth has another option. I would be satisfied with the usual inspired question that is asked in the other place, to which the Minister is quite keen to give an answer. On any reading of Hansard, your Lordships will see that inspiration for many of these questions usually comes from the Whips. I would be quite satisfied with that. That is a legitimate, sensible and open way of keeping Parliament informed. While one of my amendments does not specify it, that method of informing Parliament would be satisfactory. I very much hope that the Minister will be able to give me some words of comfort. In addition, so that I can be upsides with noble Lords on the Liberal Democrat Benches and have some amendment accepted in this piece of legislation, I hope that he will feel able to accept one of the variations in this menu. I beg to move.
§ Lord Norton of Louth
My Lords, I rise to speak to Amendment No. 11, which is grouped with the amendments tabled by my noble friend. His represent the modest option; mine represents the radical option. I thank the noble and learned Lord in advance for what I am sure will be a constructive response to my amendment. In an ideal world, I would be thanking him in advance for accepting it.
In Committee and on Report, the noble and learned Lord stressed that any Minister issuing a certificate under Clause 53 would be accountable to Parliament for that action. He said that the Bill provides that decisions must be transparent and that a Minister signing a certificate must give reasons for that decision. There is no dispute about the importance of 844 ministerial accountability. The disagreement relates to how effective accountability can be achieved. My amendment is designed to ensure that Parliament is provided with a means of achieving that desirable end. It requires that a certificate issued by a Minister has to be confirmed by both Houses; it provides for a Joint Committee to have sight, on a confidential basis, of the material that is the subject of the veto. The amendment thus ensures that Ministers cannot avoid parliamentary scrutiny. Scrutiny will take place. Ministers will have to answer to both Houses. The amendment also ensures that Ministers cannot fall back on some broad defence, parliamentarians being unsure as to whether or not that defence is justified. The House would be able to have the advice of a Joint Committee as to whether or not the defence was justified.
In Committee, I proposed that the relevant departmental Select Committee of the House of Commons—or, if the certificate covered an issue of national security, the Intelligence and Security Committee—should have confidential sight of the material. On reflection, I have decided that a Joint Committee of both Houses would be appropriate. However, if the certificate relates to an issue of national security, which, of course, is a distinct possibility, I suggest that it should also be referred to the Intelligence and Security Committee.
Making use of a Joint Committee would be feasible and appropriate. It would be feasible because the issue of a certificate would be rare. I take the Government at their word on that. Both Houses would, therefore, rarely be called upon to nominate members to serve on such a committee. It would be appropriate because both Houses would be called upon to confirm the certificate, and it would allow both Houses to appoint senior members to serve on the committee. The Intelligence and Security Committee, which is a statutory body, comprises senior Privy Counsellors. I envisage the Joint Committee comprising a similar membership. It would thus be a body of high standing and integrity.
I made the case for strengthening parliamentary accountability on Report. I do not intend to repeat what I said then; rather, I propose to explain briefly why the Minister's response on that occasion was not persuasive, and hence why I have returned to the issue at Third Reading. On Report the Minister advanced the argument that existing arrangements were satisfactory and that my proposal had two principal defects.
The Minister's justification for the Bill's provisions was that the commissioner, who would have had an opportunity to see the relevant information could,report any shortcomings in the decision-making procedure to Parliament".—[Official Report, 14/10/00; col. 259.]Doubtless the commissioner could. However, I am not concerned here with shortcomings of the decision-making procedure. I am concerned with the decision itself. The Minister argued that my proposal was deficient because it would not add any greater 845 transparency to the process and because the action of issuing a certificate was an executive and not a legislative power.
I would argue that my proposal should be seen in terms of legitimacy. Under the clause as it stands, Ministers will be judge and jury in their own cause. There will always be the suspicion—it may be groundless, but it will exist—that Ministers will exercise the veto to avoid embarrassing material being put into the public domain. My proposal provides for Parliament, enjoying a legitimacy of its own, to confirm that the Minister's reasons for exercising the veto are reasonable.
I would also contend that my proposal does aid transparency. Knowing that they will be answerable to Parliament for their actions—something they cannot avoid—is likely to ensure that Ministers provide as full a justification as possible; and, indeed, that they will not embark on a course of action unless they are sure that they can justify it to Parliament.
As regards the argument for it being an executive power, I understand the case the Minister advances but I do not think that it is conclusive. Parliament confers powers upon Ministers, but variously makes the exercise of those powers subject to parliamentary approval. The ministerial veto here is a power conferred by Parliament. We are not dealing here with executive actions derived from the prerogative.
I therefore do not find the Minister's arguments persuasive. I am greatly tempted to tell the noble and learned Lord that I have applied a balancing test, weighing the needs of the executive against the imperative of parliamentary scrutiny. It is really no contest. Government must be accountable to Parliament.
In this clause we are giving an important power to Government without balancing it with an effective provision for parliamentary scrutiny. My amendment is designed to provide for that scrutiny. I hope that Members of this House will always act to maintain effective scrutiny of the executive.
§ Lord Falconer of Thoroton
My Lords, we agree on the need for proper accountability in relation to Parliament for the giving of a certificate under Clause 52 which has been described as the ministerial veto. Amendments Nos. 9 and 10 are alternative methods of directly notifying Parliament of that. We have considerable sympathy with the spirit behind the amendments.
Amendment No. 9 is vague because it states that the relevant accountable person should draw the attention of the relevant body to the details of the certificate. That phrase is somewhat vague. Amendment No. 10 does not suffer from the same defect. It states that the accountable person shall lay a copy of the exception certificate before each House of Parliament or the appropriate devolved assembly. We have always made it absolutely clear that the relevant Minister should be accountable to Parliament. We therefore accept that amendment and would support it if the noble Lord, 846 Lord Mackay of Ardbrecknish, is minded to move it. He has made his contribution to the Freedom of Information Bill.
I turn to Amendment No. 11 tabled by the noble Lord, Lord Norton of Louth. The effect of the amendment would be that the certificate would be invalidated unless approved by a resolution of both Houses within 20 sitting days. The amendment would also have the effect that a Minister, having signed an exception certificate, would be required within the same period of time to pass in confidence to a Joint Committee the information in question.
As I said in the debate on an identical amendment on Report, that would certainly result in additional delays in reaching a view on whether information might be disclosed or withheld, but I do not believe that it would lead to any greater transparency than the Bill already provides, in particular with the amendment soon to be moved by the noble Lord, Lord Mackay of Ardbrecknish. It is clear that the exception certificate process is not something which would be undertaken without very serious consideration. There are safeguards to ensure that decisions must be transparent. The Minister must give public reasons for the decision. The commissioner will have had the opportunity, if she wishes, to see all the relevant information. She can report under Clause 49 any shortcomings in the decision-making procedure to Parliament, and Parliament itself can, at any time, hold the Minister to account for his actions. We think that that is sensible. It delivers the objectives that the more complicated procedure proposed by the noble Lord, Lord Norton of Louth, also seeks to deliver.
We have repeatedly made our position clear on why it is important that Ministers are and must be seen to be responsible in relation to decisions of that sort. We believe that it is right that Ministers, backed by the collective responsibility of Cabinet, should be seen to be responsible for taking decisions in areas such as these and that this is preferable to a position in which that responsibility is transferred to Parliament. In effect, that is what the amendment tabled by the noble Lord, Lord Norton, would do. It is right that Parliament holds Ministers to account in relation to that in a way which involves reasons, direct knowledge of what is happening and an independent person able to report any shortcomings. However, ultimately it is for Ministers accountable to Parliament, with Parliament being provided with the proper information, who have to take the decisions. In all the circumstances, I would invite the noble Lord, Lord Norton of Louth, not to move his amendment.
§ Lord Mackay of Ardbrecknish
My Lords, I am grateful to the Minister for accepting the argument put forward by myself and noble friend Lord Norton. I am sure that my noble friend accepts that his amendment was pretty much a nuclear option and would require much more parliamentary procedure than my amendment. However, I am grateful to the Minister for accepting that Amendment No. 10 carries out that for which we were searching at Report and, indeed, in Committee; that is, a way for Parliament to be 847 informed expeditiously about the occasions on which government Ministers have used the veto. I suppose I can mark that as a triumph. I shall now be able to look the noble Lords, Lord Lester, and Goodhart, in the face in the competition for who made any amendments to this Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Ardbrecknish moved Amendment No. 10:
Page 31, line 36, at end insert—
("() Where the accountable person gives a certificate to the Commissioner under subsection (2) he shall as soon as practicable thereafter lay a copy of the certificate before—
- (a) each House of Parliament,
- (b) the Northern Ireland Assembly, in any case where the certificate relates to a decision notice or enforcement notice which has been served on a Northern Ireland department or any Northern Ireland public authority, or
- (c) the National Assembly for Wales, in any case where the certificate relates to a decision notice or enforcement notice which has been served on the National Assembly for Wales or any Welsh public authority.").
§ On Question, amendment agreed to.
§ [Amendment No. 11 not moved.]
§ 5 p.m.
Lord Clement-Jones moved Amendment No. 12:
Page 71, line 4, at end insert—
(" . In Schedule 3 to that Act (conditions relevant for the purposes of the first data protection principle: processing of any personal data) in paragraph 8(2) after the words "medical research," there is inserted "for the purpose of monitoring the public health".").
§ The noble Lord said: My Lords, in moving Amendment No. 12 I shall not repeat the points made at Report. I simply reiterate that my main motive in tabling amendments on Report and at Third Reading has been the threat to cancer registries potentially posed by an insistence that either all personal data imparted by clinicians to registries must be subject to patient consent or the insistence that information is wholly anonymised. In the view of the registries, that step would render the information of far less use.
§ Much of the past three weeks has been spent by me trying to get to the bottom of why that should be so and what can be done about it. Sometimes I have felt that I have been hunting the snark in trying to find out the real problems. However, I thank the GMC and the Data Protection Commissioner for their helpful briefings in that respect.
§ The Minister's statement on Report was also in many ways a breath of fresh air and helpful in pointing out that the Data Protection Act was not the sole culprit, but rather that the common law of confidence was perhaps the greater problem. The noble Lord, Lord Hunt of Kings Heath, and his officials in the Department of Health have also been helpful, not only in analysing the problem but in suggesting solutions and bringing together the interested parties.848
§ The problems faced by the cancer registries need to be looked at as a series of legal hurdles to overcome if they are to comply with the law and avoid prosecution. The first hurdle is posed by the Data Protection Act where the first data protection principle of fair processing of information needs to be satisfied, and the third principle relating to personal data being adequate, relevant and not excessive must also be satisfied.
§ As the Minister helpfully confirmed on Report, the Schedule 3 conditions for necessary medical purposes will almost certainly cover this type of public health monitoring. Both the department and the Data Protection Commissioner, however, consider that to qualify as "necessary" there will be an obligation on cancer registries to be satisfied that they really do need all the personal information they collect and to reduce it to the minimum, which is also necessary if the third principle is to be met. There will also need to be adequate information supplied by hospitals and clinics about the work of the cancer registries and the information supplied to them by medical staff so that patients understand what information is supplied and why.
§ I support the aim of providing better information in that respect to ensure greater awareness of those who are being treated. But that is a different matter from a requirement for consent or explicit consent which can be extremely difficult and, indeed, inappropriate to obtain. Given that, however, the major hurdle appears to be the common law duty of confidence and the protection of a patient's right to privacy.
§ The Source Informatics case, decided earlier this year, seems to be the legal precedent which is exercising the minds of lawyers advising the GMC, the Data Protection Commissioner and the Department of Health, although the facts of that case, which dealt with anonymised prescribing information being collated for commercial purposes, certainly does not seem to be four-square with the situation here. Indeed, it is slightly baffling since the Department of Health appears to be appealing that decision. I am not sure why it relies on a decision against which it is appealing. My noble friend Lord Lester played an illustrious role in that case, as those who know the case will know, on behalf of the GMC.
§ That said, the view appears to be that, despite the Data Protection Act, at common law it is not sufficiently clear whether there is a public interest defence in those circumstances for public health monitoring in general and cancer health registries in particular. I believe that the department and Ministers now accept the fact that legislation, probably both primary and secondary in nature, will need to be introduced at the earliest opportunity in order to clarify the situation and that the provision of such information is in the public interest. I very much welcome that acceptance and hope the Minister today will express a clear commitment in that regard.
§ Finally, at the end of this legal trail we have the Human Rights Act 1998 and the European Convention on Human Rights where cancer registries 849 would need to show pressing social need and proportionality in collecting confidential information from patients. I hope that the early steps taken will allow those tests to be met. Clearly, as I outlined, a number of steps must be taken as a matter of some urgency by government if cancer registries are to continue with their work and not have interruptions or gaps in the data provided to them. In that context, the decision of the GMC not to enforce its code of confidentiality until October next year is to be welcomed.
§ I am pleased that the organisations involved, including the GMC, seem to be close to consensus about the way forward. However, it places a heavy responsibility on the Government to take the necessary action in the meantime. I look forward to the Minister's assurances in that respect. I beg to move.
§ Lord Falconer of Thoroton
My Lords, I have listened most carefully to the noble Lord, Lord Clement-Jones, on this occasion and on Report, and also to my noble friend Lord Turnberg, who expressed similar concerns in relation to public health work, including the tracing of communicable diseases.
We share the concern of the noble Lord, Lord Clement-Jones, for the future of cancer registries, but the amendment to the Data Protection Act will not help in the way he intends. As I shall explain, it is not primarily a data protection issue. I should like to reassure the noble Lord that the Government are taking these concerns seriously and will take whatever action is necessary to secure the future of cancer registration and other essential medical work, including work relating to public health. If there is no practical alternative, as I told the House on Report, we shall introduce supporting legislation at the earliest opportunity.
Perhaps I may briefly go through the points. The noble Lord, Lord Clement-Jones, knows that the Data Protection Commissioner believes that the processing currently being done by the registries is being done for medical purposes. The commissioner was kind enough to copy to the Home Office and to the Department of Health her letter of 15th November to the noble Lord which makes that point. Disclosure of personal data for such purposes is provided for by Schedule 3 to the 1998 Act. There is therefore no need for a change in that Act. The noble Lord may consider, despite the commissioner's views, that that is still to be tested and that legislation will put it beyond doubt.
The Government take the same view of the law on that point as the commissioner, but I can repeat the assurances I gave a few moments ago. In the unlikely event that our interpretation of the law is wrong, the Government stand ready to consider with the noble Lord and his advisers what actions may be necessary to secure the future of cancer registration or public health work. The Act allows additional "gateways" for the processing, including disclosure, of medical data to be provided by subordinate legislation. If it is necessary—for the reasons I gave neither the 850 Government nor the commissioner believe it is—we will introduce amending secondary legislation to address the concerns.
The point was also clearly made by the noble Lord in regard to common law confidentiality. We believe that the General Medical Council's advice that doctors should disclose sensitive personal data only with consent reflects its understanding of the common law duty of confidence rather than any concerns about the 1998 Act. It is said that the law of confidence requires patients to consent to the disclosure of their personal data unless there is an overriding public interest. The Department of Health is aware of the concerns raised from medical research, including the activities of cancer registries and also in relation to the public health. If there is evidence that the common law duty of confidence might put continuing medical research or public health activity at risk, the Department of Health made it clear that it will look to see what can be done without the need for legislation. But if that is not possible, it will be prepared to introduce legislation at the earliest possible opportunity to address those concerns.
I hope that in the light of those assurances the noble Lord, Lord Clement-Jones, will feel able to withdraw his amendment.
§ Lord Clement-Jones
My Lords, I thank the Minister for that reply. I am grateful for that clear exposition, which wholly tallies with my understanding of the situation. I am fairly convinced that legislation will be needed and in those circumstances I am grateful for his assurance that early legislation will be brought forward. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Lord Falconer of Thoroton
My Lords, I beg to move that the Bill do now pass.
Moved, that the Bill do now pass.—(Lord Falconer of Thoroton.)
§ Lord McNally
My Lords, I well realise that the Minister is waiting to make a Statement and I see the foreign policy buffs gathering. But it is worth making one or two short observations.
We are at the end of a 25-year road along which many colleagues have travelled. So I should like to pay tribute in the passage of this Bill to my colleagues, my noble friends Lord Goodhart and Lord Lester, for their contributions, and also to the Minister, the noble and learned Lord, Lord Falconer, who dealt with us at all times with great courtesy and often with great constructiveness.
The noble Lord, Lord Mackay of Ardbrecknish, asked on a number of occasions whether these Benches spoke as shadows or surrogates. We are glad to take both descriptions in the final shape of the Bill. Much was made by the Conservatives of the so-called "deal" we made with the Government Front Bench over some key amendments. A lot of that indignation was 851 synthetic. They proved, with the age of consent Bill and the Disqualifications Bill, that if they want to turn out their troops they can do so without our support.
However, the concessions we obtained from the Government were worth while. Those who claimed that we "blinked too early" must consider whether they really wanted the Freedom of Information Bill thrown into the maelstrom of the last eight days of this Session. Whatever else, the passage of the Bill tonight guarantees that the Freedom of Information Bill will be on the statute book this Session. The real analogy is not parliamentary ping-pong but parliamentary poker. It is sometimes smart to know when to cash in your chips and we did that at the right time.
This is not the Bill which the Liberal Democrats would have passed. It is not the Bill which David Clarke would have passed. At this stage it is worth paying tribute to David Clarke's White Paper, which will remain for all of us a benchmark yet to be attained. But it is a Bill worth having. I should have preferred to hear a few more cries of pain from the noble Lords, Lord Armstrong of Ilminster and Lord Butler of Brock well, but you cannot have everything! In conclusion, there are three hurdles which even an Act of Parliament must clear in order to be effective. The first two were referred to by my noble friend Lord Lester. First, the Bill will need an information commissioner who is robust in testing the powers which it gives her. Secondly, it will need the courts to be liberal and radical in their interpretation. Thirdly and most importantly—and this was referred to by the noble Lord, Lord Brennan—it will need Ministers who believe in freedom of information. One of the most telling points ever made about the previous administration was made by the noble Lord, Lord Lamont, when he described his colleagues as being in office but not in power. That charge sometimes hangs over the present Government.
All ministerial office is transitory. One of the lasting marks which each and every one of the present Ministers can make during their period of office is to ensure that the Bill is followed in spirit as well as in letter in the Whitehall departments over which they preside. It is no use blaming the wiles of Sir Humphrey, or even of Sir Robert or Sir Robin, if Ministers do not try to make the Bill work. If they initiate the training programmes to instil a new culture into the bureaucracy, and if they believe in the citizens' right to know, the Bill will be seen as more significant than its critics now allow. It will redeem a 25-year promise and justify the Campaign for Freedom of Information, Charter '88, the UCL Constitution Unit and others who have worked so hard to put it on the statute book. It will strengthen our democracy, make the executive more accountable and increase the power of both Houses of Parliament and of the three aspects of the media to ensure that those who seek to rule us are our servants, not our masters.
§ The Earl of Northesk
My Lords, your Lordships will appreciate the need of my noble friend Lord Mackay to prepare for his business scheduled for today. It will come as no surprise to the Minister— 852 indeed, to the whole House—that he is even now working feverishly to engender the same degree of consensus and co-operation which we enjoyed during the Bill's Third Reading, particularly on Amendment No. 10.
Accordingly, and although I am a poor substitute, on behalf of my noble friend I join in the plaudit; of the noble Lord, Lord McNally. As usual, the House can congratulate itself that the Bill, whatever its gestation, is returned to another place in much better shape than when it arrived. I congratulate all noble Lords who have assisted in that process, not least my noble friends Lord Lucas and Lord Norton. I thank the Government Front Bench, the noble and learned Lord the Minister and his officials for ensuring that our debates on the Bill have been unfailingly courteous and informative.
§ Lord Falconer of Thoroton
My Lords, I, too, join noble Lords in their remarks about the good natured and constructive way in which debates on the Bill have been conducted. We have made significant changes to the Bill and I am grateful for all the contributions from around the House.
On Question, Bill passed, and returned to the Commons with amendments.