EFFECT OF EXEMPTIONS (Hansard, 17 October 2000)

HL Deb 17 October 2000 vol 617 cc923-30 923

§ (" .—(1) In respect of any information as respects which any provision of Part II provides that the duty to confirm or deny does not arise, section 1(1)(a) does not apply, except to the extent that—

(a) the duty to confirm or deny is excluded only by a provision not conferring absolute exemption, and
(b) in all the circumstances of the case, the public interest in disclosing whether the authority holds the information outweighs the public interest in maintaining the exclusion of the duty to confirm or deny.

§ (2) In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply, except to the extent that—`

(a) the information is exempt information only by virtue of a provision not conferring absolute exemption, and
(b) in all the circumstances of the case, the public interest in disclosing the information outweighs the public interest in maintaining the exemption.

§ (3) For the purposes of this section, the following provisions of Part II (and no others) are to be regarded as conferring absolute exemption—

(a) section 19,
(b) section 21,
(c) section 30,
(d) section 32,
(e) section 34 so far as relating to information held by the House of Commons or the House of Lords,
(f) in section 38—

(i) subsection (1), and
(ii) subsection (2) so far as relating to cases where the first condition referred to in that subsection is satisfied by virtue of subsection (3)(a)(i) or (b) of that section,

(g) section 39, and
(h) section 42.").

§ The noble and learned Lord said: I have already spoken to this amendment. I formally move.

The Deputy Chairman of Committees (The Viscount of Oxfuird)
I must advise the House that should Amendment No. 10 be agreed to, I cannot call Amendment No. 11 due to pre-emption.

§ Lord Goodhart had given notice of his intention to move Amendment No. 10: Leave out lines 8 to 10 and insert ("maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the authority holds the information").

§ The noble Lord said: I have already spoken to Amendment No. 10. I would like to say that having heard what the noble and learned Lord, Lord Falconer said, this is something that we take seriously. It is something we are likely to bring back but whether we press it on return depends on whether the Government, having taken the matter away, come back with the result of further consideration. Having said that, I think that the amendment has not been formally moved and therefore I do not move it.

§ [Amendment No. 10, as an amendment to Amendment No.9, not moved.]

§ [Amendments Nos. 11 to 15, as amendments to Amendment No. 9, not moved.]

§ Lord Lucas moved, as an amendment to Amendment No. 9, Amendment No. 16: Line 21, leave out paragraph (a).

§ The noble Lord said: The Minister has covered this matter to some extent. I can see now that the word "reasonably" in Clause 19 being subject to the information commissioner's judgment is an advance on where I thought we were. However, there are an awful lot of other privileges and rights in the Bill—notably Clause 10 which gives an applicant some control over the form in which the information reaches him or her—which I am not at all clear will come under the term "reasonably" in Clause 19.

§ I give the noble and learned Lord a typical illustration. I asked a government agency for a copy of its 1998 annual report. I was told that I could obtain it from the House of Lords Library. I said, "Yes, but I would like it in electronic form". They replied, "We have it in electronic form, but you cannot have it in electronic form". That is not the state of affairs which I should like to prevail under the Freedom of Information Bill when it is enacted. We have a Government who are committed—so they say—to making us an Internet society by 2005. A necessary 925 part of that involves government information being readily available over the Internet. The fact that something is printed and I can obtain it from my public library or pay the Stationery Office £10 for it is no substitute for it being available on the Internet.

§ If, under Clause 10, I shall have the right—should I ask for information under the terms of the Bill—to obtain that information in electronic format, as that is reasonably and easily available and easy for the public authority to provide, I do not see why I should be prevented under Clause 19 from obtaining that information in that format and why we should be, as it were, chucked out of the information society.

§ I have made many such requests. At the moment they are generally refused. I am told by the Department for Education that I can apply in writing to every school for the information I require and that although the department holds it centrally in electronic form it will not release it. I believe that that matter comes under the provisions of Clause 19 as I shall be unable to obtain information from a public authority in a form which is easily available—the exemption will prevent that—but which it is reluctant to provide for one reason or another. We shall discuss the substance of that matter later. However, it seems to me that a public interest test is the right way to approach making the exemption under Clause 19 more human and usable rather than just reasonable. I believe that would bring it more into the whole ambit, purpose and style of the Bill than is currently envisaged. I beg to move.

§ Lord Falconer of Thoroton
I shall speak to the matter briefly as later we shall discuss more detailed provisions that relate to electronic access. Clause 19 provides that if the information is reasonably accessible, the freedom of information regime is not instituted. The question of whether information is reasonably accessible through other means is to be decided in the first instance by the relevant public authority. If the applicant does not accept its conclusion, the information commissioner can decide the matter. No Minister will override that decision. It seems sensible that where the issue does not concern whether someone should gain access to information, but rather whether it is reasonably accessible through other means, the matter should be decided under the provisions of one part of the Bill. There should not be an overlapping set of provisions.
I do not know whether other provisions might apply in the case that the noble Lord mentioned. I believe that in that case the information commissioner would have to decide whether the fact that the noble Lord was denied the information he requested meant that it was not reasonably accessible. The Bill establishes an independent person; namely, the information commissioner, to decide such matters. Under those circumstances I suggest that the noble Lord withdraws the amendment.

§ Lord Lucas
I shall read with care what the noble and learned Lord said. I beg leave to withdraw the amendment.
926 Amendment No. 16, as an amendment to Amendment No. 9, by leave, withdrawn.

§ Lord Lucas moved, as an amendment to Amendment No. 9, Amendment No. 17: Line 22, leave out paragraph (b).

§ The noble Lord said: This amendment concerns the security services. Does the noble and learned Lord agree with my interpretation that under these circumstances, if there were a major cost overrun on some security service project, we would have no right to know anything about it? I beg to move.

§ Lord Falconer of Thoroton
The policy conclusion reached by the Government on this matter was that the security services should not be hampered by the Freedom of Information Bill. That is why the Bill is drafted in the way that it is.

§ Lord Lester of Herne Hill
I perfectly understand the Government's policy decision on this matter. However, I point out that there could be extreme cases where, if the measure were rigid and absolutist in its application, the courts might have to deal with the matter. Even in the security area one can imagine a whistle-blowing situation in which, if the matter has been completely immunised under the terms of the clause from freedom of information access, it would have to be dealt with at common law due to an abuse of power. I simply mention that because one should not assume that just because something has absolute exemption under the Bill it would have absolute exemption either as a matter of common law or even under the Human Rights Act.

§ Lord Falconer of Thoroton
The Bill deals with the right of the citizen to extract information from the government machine. Whistle-blowing activities are not dealt with at all under the Bill; I accept that that is a matter for the common law.

§ Lord Mackay of Ardbrecknish
Does that mean, for example, that the cost of repair of the security services building damaged in a recent terrorist attack would be considered to be information which should not be divulged?

§ Lord McNally
Before the Minister replies to that point, I hope that he will consider my next point. Does this mean that where the security services are engaged in non-secret activity such as the construction of a new building and that building runs over budget they can still hide behind their secrecy? Perhaps the noble and learned Lord should have asked the security services to look after the Dome.

§ Lord Falconer of Thoroton
The more often the Dome is discussed the better as that generates more publicity for it. The Government have taken a policy decision to exclude completely the activities of the security services from the terms of the Bill. The kind of matters to which the noble Lords, Lord Mackay of Ardbrecknish and Lord McNally, referred are subject 927 to parliamentary scrutiny. Detailed arrangements have been put in place to deal with expenditure and other such matters.

§ Lord Lucas
I beg leave to withdraw the amendment.
Amendment No 17, as an amendment to Amendment No. 9, by leave, withdrawn.

§ Lord Lucas moved, as an amendment to Amendment No. 9, Amendment No. 18: Line 23, leave out paragraph (c).

§ The noble Lord said: Clause 30 concerns "Court records, etc." I address my remarks to "etc" as I believe that the Minister has covered court records. Clause 30 covers public authorities other than courts, for example, tribunals and statutory inquiries, the documentation of which is not subject to the provisions of the Bill. Clause 30 contains a no harm test and would apply even when the disclosure could not prejudice any proceedings, for example, when they have been completed or abandoned. Its provisions would mean that unpublished tribunal rulings, such as those of the vaccine damage tribunal, could not be obtained from the Department of Health. Military boards of inquiry reports could not be obtained from the Ministry of Defence. Unpublished reports on planning inquiries would be exempt. Documents such as public interest immunity certificates would always be exempt even when they did not contain sensitive information. I believe that that is an undesirable state of affairs and that there ought to be a public interest test applied in those cases. I beg to move.

§ 6 p.m.

§ Lord Lester of Herne Hill
Perhaps I may explain that I am not an enthusiast for the amendment. We are in a judicial area, including all tribunals, arbitrators and so on. The right body or person to decide on how the public interest should be weighed in these cases should be the judge, the chair of the tribunal or the arbitrators. That applies especially in the case of public interest immunity. We shall start crossing wires and producing a very complicated situation if, using a balancing and harm test, the Freedom of Information Bill begins to intrude into those other areas. The courts are pretty astute to ensure that restrictions in those areas are not unnecessarily imposed and that the public has access to information, where necessary, where it will not infringe, for example, fair trial. For that reason I should not be in favour of the amendment.

§ Lord Falconer of Thoroton
The reasoning given by the noble Lord, Lord Lester of Herne Hill, reflects the reasoning of the Government. Where the matter is in the hands of a court—and in Clause 30 a court, includes any tribunal or body exercising the judicial power of the State"— it should be for that body to decide when it is appropriate to release that information.

§ Lord Lucas
I beg leave to withdraw the amendment.
928 Amendment, by leave, withdrawn.

§ [Amendments Nos. 19 to 21, as amendments to Amendment No. 9, not moved.]

§ Lord Lucas moved, as an amendment to Amendment No. 9, Amendment No. 22: Line 32, leave out paragraph (g).

§ The noble Lord said: The Minister set out the position with great clarity. My question concerns the nature of the public interest test which would be applied in ordinary law were the matter to arise. The nature of that public interest test is considerably narrower than the public interest test envisaged under the Bill. There is not equality. For instance, the common law test takes particular account of the identity of the person to whom the information is disclosed; and there are other aspects on which that test is different from the test provided in the Bill. I would prefer the test in the Bill to be applied rather than the common law test. I beg to move.

§ Lord Falconer of Thoroton
Clause 13 refers to a public interest in disclosing a particular fact. In relation to the common law test and confidentiality, the courts say that on the face of it someone has a right to keep that information confidential but ask, despite that confidentiality, whether there is a public interest in disclosing the information at large. I am sure that lawyers could fine tune the differences between the two tests but they are in substance sufficiently close. In order to establish whether the exemption applies, consideration must be given as to whether common law public interest applies. Having decided that it does not, it would be absurd to have to consider again a similar test under the current Clause 13. That does not seem sensible to us. That is why we have excluded the matter from Clause 2, which was Clause 13.

§ Lord Lucas
I thank the Minister for that explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Lucas moved, as an amendment to Amendment No. 9, Amendment No. 23: Line 33, leave out paragraph (h).

§ The noble Lord said: The amendment is a more practical way of dealing with the problem of the complicated and dense repeals which would be required to get rid of the exemptions one by one. Exemptions have always proved somewhat hard to deal with. That takes up a great deal of official time. Consideration has to be undertaken in the absence of any set of facts which might illuminate whether or not a statutory restriction should be left. At the end of the day, the restrictions remain because it takes too much work to remove them.

§ A mechanism allowing them to be overridden if the circumstances of the case demanded it would be an easier approach. We could deal with the issue on a case 929 by case basis without having to go into the restrictions on a lengthy and difficult process of legislation. I beg to move.

§ Lord Lester of Herne Hill
I do not support the amendment for reasons similar to those given in debate on an earlier amendment on judicial powers. The amendment seeks to override Community obligations or something forbidden under another statute or punishable as a contempt of court, treating the Freedom of Information Bill as trumping it. But that would not produce clarity but confusion.
I take the examples covered by Clause 42. There is already a fair recognition of the importance of free speech. For example, in Community law in the Community obligations the European Court of Justice would vindicate the right to free speech subject to necessary exceptions. The same applies to contempt of court. The Contempt of Court Act 1981 was introduced specifically to ensure that free speech was not trumped unnecessarily by fair trial; and the same as regards common law in relation to contempt. I cannot say the same as regards, prohibited by or under any enactment". However, under Section 3 the Human Rights Act would come to the rescue of that by re-reading an enactment in a way which was narrow if it unnecessarily interfered with free speech.
Therefore, safeguards are built in although one cannot read them on the face of the Bill. One probably has to be a lawyer to advise on the issue, which is a regrettable necessity for most people—if not for lawyers. I do not think that the lawyer problem would go away if the amendment were accepted by the Government.

§ Lord Falconer of Thoroton
Clause 42 identifies that there are other legal bars on disclosure. In effect, it states that they should survive. However, it is worth drawing attention to two matters in the Bill. First, Clause 74(1) states: If, with respect to any enactment which prohibits the disclosure of information held by a public authority, it appears to the Secretary of State that by virtue of section 42(1)(a) the enactment is capable of preventing the disclosure of information under section 1 or 13, he may by order repeal or amend the enactment for the purpose of removing or relaxing the prohibition". The Secretary of State has power to deal with the point on Clause 42(1)(a). He cannot deal with a Community obligation in that way. Nor can he deal with a contempt of court problem. It is right that he should not be able to do so by order. To some extent, the Bill gives some comfort on the point the noble Lord raises.
At present 400 bars would fall within Clause 42(1)(a). A review of the bars is ongoing. I hope that the Government will announce in due course possible candidates for amendments or repeal. I believe that we are dealing with the matter in a sensible way. I respectfully suggest that the noble Lord withdraws the amendment.

§ Lord Lucas
I am grateful for that explanation. I beg leave to withdraw the amendment.
930 Amendment, by leave, withdrawn.
On Question, Amendment No. 9 agreed to.

§ [Amendment No. 24 not moved.]

§ Lord Lucas moved Amendment No. 25: After Clause 1, insert the following new clause—