§ (" .—(1) When a request for information is received by a public authority and that information relates to a third party's commercial interests the public authority shall—
- (a) without delay notify the third party of the request for information and the extent and nature of the information relating to the request and give the third party a reasonable opportunity to make representations regarding whether the information requested falls under an exemption as listed in Part II; and
- (b) have due regard to any such representations before discharging the duty to confirm or deny and before communicating the information or giving a notice under section 15.
§ (2) For the purposes of subsection (1)—
- (a) "third party" means anyone other than the person making the request of any public authority; and
- (b) information shall be taken as relating to a third party's commercial interests if that person provided the information to the public authority, is identified in the information and is reasonably likely to be affected (at any time) by disclosure of the information or its existence.
§ (3) Where, after due regard has been given to any representation made in accordance with subsection (1), a public authority is to any extent not relying on a claim that information is exempt information in reaching its decision, the public authority must, without delay, give the third party a notice which—
- (a) states that fact;
- (b) specifies the exemption in question; and,
- (c) states why the exemption does not apply.").
§ The noble Lord said: This amendment raises another point of considerable importance; namely, third party commercial interests. Under the Bill as it 984 stands a third party, for example a company which contracts with the public authority concerned, may be affected by the disclosure of information concerning that business. The company has no right even to be notified of any application for disclosure. The intention of the new clause is to provide such a right and to give the company an opportunity to say to the public authority that it believes that the request falls under one of the exemptions provided in the legislation. The amendment does not give the commercial organisation concerned any veto over the matter; all it does is allow the company to make representations within the general terms of the Bill. I believe that that is the least such an organisation can expect.
§ At the moment there is great concern about the onerous regulation of business. The Institute of Chartered Accountants in England and Wales, to which I belong, has just reported the results of its latest survey into the regulation of business. They reveal that the burden of new regulation on business has doubled in the past 12 months since the previous survey. Without going into the details, that is some of the background. That burden potentially places more difficulties on those who do business with the Government, and it is important that organisations have this safeguard within the Bill.
§ The other amendments in the group are of the same character. Amendment No. 78 ensures that the relevant third party commercial interest cannot delay unduly in deciding what to do about it. It is given 10 days within which it must respond, should it wish to do so. That is not a long period, but it provides the organisation with an opportunity to make its point. It is important to ensure that the Bill does not make it more difficult for third parties to contract with the Government and add to their costs and problems one way or another. The amendment also ensures that they are protected from incorrect or damaging information, although not entirely since the responsibility remains that of the public authority. However, we all know that public authorities do not always understand the concerns of business or the delicate nature of its operations. This amendment provides a small tripwire to try to protect those who do business with government. I beg to move.
§ Lord Goodhart
It is obviously correct that third parties whose rights and interests are likely to be affected if information is disclosed should have the right to be heard before any order is made for disclosure. The question is whether this particular amendment is the right way to do it. I understand that the Government intend to do this in the code of conduct by means of the provisions of Clause 44. I have had an opportunity to look at the code of conduct. At a rapid glance—I have not been able to consider it in detail—it appears fairly satisfactory.
There are also cases where it may not be necessary to consult the third party, in particular where the public authority in question is clearly of the opinion that the information should not be disclosed and, therefore, the third party will not be affected by it anyway. If a 985 more tightly defined amendment could be produced which said, for example, that the rights of a third party should not be affected by disclosure of commercial information without that party having been informed of the proposal, I think our reaction might be somewhat different. As the amendment stands, we do not feel we can support it, although we respect the principle behind it.
§ Lord Brennan
I have a concern about the structure of the Bill in relation to the effect on third parties of applications for information which might involve confidential data. If I understand the Bill correctly, Clause 7 is the trigger for the request for information; and Clause 41 identifies certain commercial information as being "exempt", as it is defined. But on the face of the Bill there is no provision for the third party to take steps to protect his own interests. Could the Bill as it is now drafted be used in a way that a government department or civil servants could rely on Clause 41 by saying, "This is confidential information", without any reference to the party whose interests might be affected?
Perhaps I may give an example which is entirely hypothetical but based on fact. In the Access to Justice Bill last year there was considerable debate as to whether the withdrawal of legal aid for personal injury would be adequately counteracted by the provision of a conditional fee system supported by insurance against the defendant's costs, should the plaintiff lose. On many occasions during the debates that I listened to, when questions were asked about what the insurers were going to provide it was said that it was confidential, commercially sensitive information. That meant that there was no means of determining whether what the insurers were saying provided an adequate balance against the withdrawal of personal injury. Perhaps it did. It does not really matter. I am using the fact as art hypothesis. In that example, a government so inclined, through a department, could say,The commercial interests are being affected. We are not going to give the information",without any reference to the third party at all.
I have a second concern. What is the position where there is a disagreement between the Government and a third party? It may arise in one of two ways. The Government may wish to reveal but the third party may not and vice-versa. How is the problem then to be resolved? This is an extremely important part of the Bill. Many of the public concerns that may arise will affect things like the provision of health services, the safety of drugs and railway safety systems, all of which involve third party commercial interests. I invite the Government to clarify these matters either now or later.
§ Lord Lucas
Perhaps I may add a personal anecdote. A government department has refused to provide me with information, on the grounds of confidentiality, 986 which it knows the third party would be very happy to have released. But it refuses to ask the third party so that it does not have to provide the information to me.
§ Lord Lester of Herne Hill
The Government have not done themselves any favours by not making more of the draft code. I did not know that it was in the Library until it was indicated earlier. Like my noble friend Lord Goodhart, I have now had a look at it. I wonder whether it will help if I read in a relevant passage which deals with the problems that the noble Lord, Lord Brennan, particularly raised. It seems to me that the way the code deals with the matter perfectly balances the competing rights and interests. Therefore, it may be for the convenience of the Committee to have it not as a separate document in the Library but actually in the report of the debate. It is not too long. Part IV, Consultation with Third Parties, states:In some cases the disclosure of information pursuant to a request would affect the existing legal rights of a third party such as the right to have certain information treated in confidence or the right to personal privacy. Where the consent of the third party would enable a disclosure to be made an authority should consult that party prior to reaching a decision, unless it is clear to the authority that the consent would not be forthcoming.Where the interests of the third party which may be affected by disclosure do not give rise to legal rights, the public authority should consider whether it should consult the third party. Consultation may be unnecessary where: the public authority does not intend to disclose the information relying on some other legitimate ground; the views of the third party can have no effect on the decision of the authority, due to other legislation preventing the disclosure of this information, for instance; or the cost of consulting with third parties would be disproportionate.Consultation should take place where: the views of the third party may assist the authority to determine whether information is exempt from disclosure under the Act; or the views of the third party may assist the authority to determine whether to exercise its discretion to disclose information in the public interest under section 13 of the Act.Where the interests of many parties may be affected by disclosure (but not their legal rights) and those parties have a representative organisation which can express views on behalf of those parties, the authority may, if it considers consultation appropriate, consider that it would be sufficient to consult a representative organisation or a representative sample of the third parties in question.An authority cannot fail to comply with its duty to disclose information under the Act, or its duty to reply within the time specified in the Act, on the grounds that the third party has not responded to consultation".Finally, there is an important further section which deals with a point to which the noble Lord, Lord Cope, referred. Part V, Freedom of Information and Public Sector Contracts, states that public authorities should not enter into contracts with unnecessary restraints vis-à-vis third parties on the provision of information.
I apologise for quoting at length but it seems to me that it gives flesh to the bare skeleton of the Bill and indicates a proper practical way of dealing with these important issues.
§ Lord Hunt of Wirral
The noble Lord, Lord Brennan, was right to draw our attention to what could be a difficult situation. Perhaps I may refer back 987 to the code. Under exemption 13 there is a clear statement. On third parties' commercial confidences it refers to:Information, including commercial confidences, trade secrets or intellectual property, whose unwarranted disclosure would harm the competitive position of a third party".That was clear and simple. Following the juxtaposition of the legacy of exemption 13 with Clause 41 and the quotation from the code which the noble Lord, Lord Lester, has just read out, I saw immediately that there could be some gaps where there would be uncertainty, particularly if it were left very much to the public authority to decide whether to consult the third party. That causes me concern. I could hear that concern reflected in the words read out by the noble Lord, Lord Lester. So it would not be a right of a third party to be notified automatically as soon as a request was made about information which could well be commercially confidential. We know of many occasions in government when that arises and in the past the procedure has been very simple and easy to follow.
What does cause me concern is that, as is always the case when one tries to set out a detailed position in legislation, it is usually incapable of that detailed application without introducing the sort of complexity which one heard from the noble Lord, Lord Lester, in reading out what should have been a very simple statement but which has been qualified to such an extent that it is now completely ambiguous, in my mind, as to whether or not the third party has that automatic right—
§ Lord Lester of Herne Hill
I do not know whether the noble Lord appreciated, from my rather gabbled reading, that where there is a legal right because the information is covered by contract—and of course there has to be consultation as a matter of binding contract—there is no ambiguity about that. Indeed the code makes that clear.
§ Lord Hunt of Wirral
I appreciate that. I was talking about the other instances where there is no automatic right. That was causing me some concern, particularly, as the noble Lord will see when he refers back to what he read out, there are a whole series of instances where the third party is not automatically consulted. That does cause me some concern and it leads us back to Amendment No. 70, put forward by my noble friend Lord Cope. It does seem to suggest that this is one way in which the gap could be filled. I am not too sure that my noble friend has confidence that he has finally achieved the exact wording required but certainly this is a move in the right direction, which would do much to underpin that right of the third party. When the noble and learned Lord the Minister responds, it would be very helpful indeed if he could relate this particular amendment to Clause 41, to the original code and to the code which the noble Lord Lester read out in full—which was most helpful—just to make sure it is in the record. If the noble and learned Lord the 988 Minister could bring all those aspects together I think it would be a great help and of great assistance to the Committee.
§ Lord McNally
Just before the Minister replies, I should like to intervene with some trepidation. I do not know the polite collective term for a group of lawyers, but I am in the midst of them—
§ Lord McNally
Thank you. Perhaps I could approach this in another way. I think the noble Lord is right: this is a key part of the Bill. The point was made earlier that successive governments have moved more and more what were thought of as public sector responsibilities to the private sector. Successive governments have encouraged public/private partnerships which bring public authorities and the private sector into very close co-operation. I served on your Lordships' Select Committee that looked at changes that had taken place in the public service in the 'eighties and 'nineties. It was a dramatic if not a noisy revolution, which I do not think people fully appreciate, on which this Bill will impact.
My concerns are twofold. The brief we received from the CBI sets out very clearly the risk of disclosure of trade secrets and of commercial information, prejudicing commercial interests. This means that business will be more reluctant to provide information in the first place and perhaps more reluctant to get into bed with the public sector on joint projects which both sides of the Committee want to encourage.
How do we get round this? It is clear—perhaps it is something that the CBI and the private sector will have to take on board—that doing business with the public sector, which for many companies is very profitable indeed and very attractive, carries with it certain freedom of information responsibilities.
The kind of culture we are trying to encourage in the public sector as regards the citizen's right to know will spill over into the private sector as well. At the beginning of this debate it was said that one of the intentions behind the Bill was to bring about a cultural change and a shift in the balance of power.
The relationship between the private and public sectors and how the Bill will interface between them will form extremely important parts of the legislation. From the way the lawyers have been jousting this evening in their efforts to get it exactly right, one can see that that is going to take some considerable skill. That is one reason why I look with such confidence to the noble and learned Lord, Lord Falconer.
§ Lord Falconer of Thoroton
This is an important amendment which requires careful consideration. It would add to the Bill a provision specifying that, where a request relates to the commercial interests of a third party, the authority must notify the person whose commercial interests would be affected of the request, tell the third party what information it holds, and give 989 him the opportunity to comment on whether the information is exempt. We are dealing here with a case where the commercial interests of a third party—namely, not the applicant—can be affected by the disclosure.
There are two possible situations to consider here. The first is where the third party has a legal right to ensure that the information is not disclosed—for example, an enforceable right in contract—in confidence or because it is a trade secret. The Government believe that the right way to deal with this is that such a person should be consulted before any disclosure is made. If, on examination either through the consultation or separately, it emerges that he has a legal right which would prevent disclosure, then no disclosure should be made.
The Government feel that the best way to ensure that that is put in place in practice is not by reference to detailed provisions in the Act but by a code of practice which sets out a process requiring the relevant public authorities to consult and contact someone, and not to disclose where such a legal right exists. That forms the extract from the code quoted by the noble Lord, Lord Lester of Herne Hill. I am most grateful to him for doing so. For the record, it is the code of practice, paragraphs 19 to 23. Where there is a doubt about it, the code specifically states that consultation should take place where the views of the third party may assist the authority to determine whether information is exempt from disclosure under the Act. Thus, where there is a genuine question about it, the public authority should get in touch with the third party.
§ Lord Hunt of Wirral
I apologise for intervening. Will the Minister reflect on the fact that presumably it would be for the public authority to decide? That would therefore be an arbitrary decision taken by the public authority which could compromise the rights of the commercial interests of another party. The third party would not be involved in that decision. It would be a unilateral decision taken by the public authority. Is that not another area which may cause some concern?
§ Lord Falconer of Thoroton
So far as concerns the public authority, it is obvious that it must act sensibly and reasonably under the provisions of the code. What is the alternative? The alternative would be that, wherever the authority thought conceivably that the commercial interests of a third party might be affected by disclosure, it would have to consult that third party.
Perhaps I may cite an example. Suppose that information was sought to be disclosed which would prejudice the interests of a whole range of people in a particular industrial or agricultural field. Is it sensible for the public authority to be put under an obligation to have to consult every single business that runs a particular kind of process against the remote possibility—an extremely remote one—that one of them might have a legal interest? Does every pig farmer have to be consulted before something relevant to the farming of pigs is disclosed? The noble Lord, Lord Carter, makes a noise in relation to that. As the 990 Government Chief Whip knows, that would make this part of the Bill effectively unworkable, and it would do so in a way that would provide very little protection in relation to legal rights.
§ Lord Lester of Herne Hill
If the public authority acted in breach of contract, trust, confidence, trade secrets and so on, it would be legally liable. Therefore there is no question of it being an arbitrary decision. The public authority is bound by law to comply with these obligations in any event. Or am I mistaken?
§ Lord Falconer of Thoroton
The noble Lord is absolutely right. I assumed that the noble Lord, Lord Hunt, was thinking that perhaps public authorities might make a mistake from time to time. They might—but, assuming that they are addressing the matter in good faith, it will not be difficult to identify whether or not there is an arguable trade secret, confidence or contractual claim. The alternative of obliging them to consult everyone—which is the effect of the added clause proposed by the amendment—is not sensible.
I should make it clear—as the noble Lord, Lord Lester, did by his reading—that the consultation goes wider than simply cases where there is either a legal interest or the possibility of a legal interest. It also includes cases where the public authority thinks that the third party may have something to say that could be relevant to the question of disclosure, even where there is no legal interest.
That is a sensible process. It sets out what we believe to be good practice; it is practicable. I have no doubt that it is much more sensible to deal with this issue by way of a code of practice on the face of the Bill. It provides the degree of flexibility which is necessary in such a situation. I hope that in the light of my explanation the noble Lord will withdraw the amendment.
§ Lord Cope of Berkeley
It has been an interesting debate. However, this remains an important point to which we must clearly give further thought. We shall of course consider some of the points made by the noble Lord, Lord Brennan, in regard to dealing with trade secrets and so on, when we come to the amendments to Clause 41.
However, coming back to Amendment No. 70, as my noble friend Lord Hunt indicated in his usual polite manner, the drafting of the amendment is not something on which I am relying absolutely. Several points were made in the course of the discussion which indicated ways in which the drafting may be improved.
The nub of the question is whether it is correct that this matter—on which we are largely agreed—should be in a code of practice or in the Bill, drafted of course in an excellent manner. As we have discussed, there is a wide range of public authorities; there are several pages of bodies, some of which one does not normally think of as being part of government. These public authorities will not be legally bound to follow the code. They are supposed to follow the code of practice, but 991 they are certainly not legally bound to. They might of course be bound by a contract they entered into with the third party concerned, but not all of them will be.
Not unexpectedly, it has emerged from the debate that the Government believe, as we do, that third parties who are directly affected should be consulted—particularly if there is a question of trade secrets, and so on—but they are prepared to put that provision only in the code of practice and not in the Bill. We shall reflect on the arguments that have been made—
§ Lord Lester of Herne Hill
I am grateful to the noble Lord. When the noble Lord reflects, will he take into account the fact that the code creates a legitimate expectation that it will be followed. If it were not followed by a public authority, there would be judicial review. So in that indirect way it becomes legally binding upon all public authorities.
§ Lord Cope of Berkeley
That is an additional point for us to consider. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Clause 8 [Fees]:
§ 9.45 p.m.
Lord Cope of Berkeley moved Amendment No. 71:
Page 5, line 18, leave out ("may") and insert ("shall").
§ The noble Lord said: This amendment stands in the name of my noble friend Lord Mackay of Ardbrecknish. Various amendments are grouped with it for discussion. They all concern fees. Amendment No. 71 is not the most important amendment in the group, but it attempts to ensure that the Secretary of State will definitely make regulations regarding fees. I am in no great doubt that the Secretary of State will wish to make such regulations; however, we believe that it should be his legal duty to do so. Most of the amendments concern the detail of how the fees will work.
§ Amendment No. 72 attempts to create a presumption that there will not be a fee in most cases and allows for a fee to be charged only in prescribed cases so as to narrow the circumstances in which any fee is payable.
§ Amendment No. 73 seeks to place a limit of 10 per cent of the cost of complying with the request on the fee. That percentage is not plucked out of the air. It comes from no less a person than the Home Secretary, who suggested during the course of debate on the Bill in another place that a charge of up to 10 per cent of the cost of supplying the information might be appropriate.
§ Amendment No. 74 suggests that fees should be set at a sufficiently low level so as to facilitate access by the public. What we do not want—I am sure that there is no disagreement in this place about this—is public authorities trying to put people off using the Bill by charging large fees. This is another amendment where it would not be right to rely too much on the precise 992 drafting of the matter, although I fancy that I shall have the support of most Members of the Committee in terms of the thought that lies behind it.
§ The other amendments standing in the name of my noble friend, Amendments Nos. 101 to 103, suggest that a fee may be charged only in prescribed cases; otherwise no fee is to be payable. All the amendments go to the same general point.
§ Amendment No. 85 relates to the refusal of requests. Requests can be refused if the cost of meeting them exceeds the appropriate limit. Ministers have set this at £500. We are all conscious of the answer to parliamentary Questions, that this would be beyond what is reasonable. We have all received answers of that character—and some of us have given such answers from time to time, just as Ministers do at present. So it is not a question of not appreciating what lies behind all this. Of course, it is entirely possible, indeed likely, that some people will ask for information which appears to be legally necessary but which will be impossibly expensive to provide. There may be a good deal of agreement around the Chamber on this point.
§ The question of fees is of great importance because we do not want public authorities, and the sort of bodies that will be covered by this legislation, to be burdened with huge costs on account of this so that it becomes quite out of proportion to the value. However, we do not want individuals to be put off using the powers that we are attempting to give them under this legislation by the fact that very large, disproportionate fees are being charged. In one way or another, all these amendments seek to achieve that aim. I beg to move.
§ Lord Lucas
I have two amendments in this group. The first is Amendment No. 84. However, as I rather prefer my noble friends' amendment, Amendment No. 85, I shall not cover it in what I have to say. Amendment No. 87 addresses a separate point; namely, the question of periodic requests. Let us suppose that I were to make a habit of asking the Department of Health every month to provide statistics of people who have died from variant CJD. It is, of course, something that the department already provides, but let us imagine that that was not the case. None the less, it would, to my mind, be a perfectly reasonable request to make.
There are pieces of information with which one wants to build up a periodic pattern as that information changes, and where it is necessary to make such a request. If we are to be faced under this legislation with the cost of complying with such a periodic request being aggregated to the point where it is no longer necessary for the local authority to provide the information because the appropriate limit has been exceeded, I believe that we would be looking in the wrong direction. There is provision in the Bill, as written, for this area to be governed by regulations. I should be content if the Minister could promise me 993 what will be in those regulations to allow reasonable periodic requests for information, such as I have described, to be made.
§ Lord McNally
A number of words have been used over the past few hours to indicate how this Bill will be made to work—for example, "simplicity, good faith and common sense". What we are discussing now is another element; namely, cost. As the noble Lord, Lord Cope, said, if the means of gaining access to information were in any way to be a deterrent—if freedom of information was like the freedom to dine at the Ritz; in other words, you could get information if you could afford it—that would be against the spirit of what I hope we all intend to be a revolutionary Bill.
In their different ways, all these amendments seek reassurance on that point. There is no particular merit in picking them out separately, other than to mention the one that suggests that the actual cost of finding information should not be a final barrier in all cases. Indeed, there are occasions when the costs would justify acquiring the information, even if that process was expensive.
It has been suggested to us that in other freedom of information Acts there are forms of words that are not so open to using "costs" as an excuse for not providing such information. I take the point made by the noble Lord, Lord Cope. We have all noticed that certain Members in another place table so many Questions obsessively—thank God none of them ever sits on the Liberal Democrat Benches. Indeed, I cannot think of any who do.
Public authorities have to be protected against such practices. However, we must also ensure that neither initial access nor the response of prohibitive cost is used too easily or too lightly. I rose to speak to this group of amendments in order to hear the Minister's response to the whole approach of making sure that cost is not a deterrent to citizens seeking to use the Bill and to ensure that public authorities do not use it in too cavalier a manner so as not to co-operate with the Bill.
§ Lord Hunt of Wirral
I bear a number of scars in relation o charging because when I had responsibility for the code I recall being mercilessly bludgeoned for the photocopying charges of the National Rivers Authority. I can still re-live those moments when I suddenly discovered that an official somewhere had assessed that photocopying charges should be between £50 and £100 per page. I shall never forget it, nor will my officials when I was questioning them afterwards. I had not been fully briefed on the subject.
I believe my noble friend Lord Cope has raised some very important points here. I follow the noble Lord, Lord McNally, in reflecting on what happens elsewhere. I bear in mind that the cost calculated by officials normally means the marginal cost of locating and retrieving the information, calculated often in quite an antiquated way at rates that do not bear much relationship to today's costings. A number of Freedom of Information Acts require the authorities not to show that the cost has risen above a certain limit, but 994 the onus is on the authority to show that compliance would cause substantial and unreasonable disruption to its work, which in other jurisdictions is found to be a more sensible approach than just the calculation of a simple figure.
As I understand it, Ministers have already calculated that the appropriate limit will be set at £500. It would be of great assistance to us in responding to these amendments if the Minister were to give examples of how the £500 will be calculated and instances in which he believes a wider range of information might not be justified but a smaller amount might well be authorised at a cost that would be below the limit. Officials who are unwilling to disclose the information might use the £500 limit as an excuse because the request was phrased too widely. I recall from Parliamentary Questions that, on the receiving end, I could often see the way that the Question should have been phrased but fortunately was not. I would not want a member of the public to fall foulof a system in that way. Although I was quite willing for Members on the Liberal Benches in the other place to fall foul of the system in that way., I would not want members of the public to he denied their right to information either under the code as it existed or under this new legislation. I hope that the Minister may be able to respond to that point.
§ Lord Brennan
I invite the Minister to clarify the approach that is likely to be taken in these regulations. It seems that they ought to be constructed with great sensitivity for the following reasons. The first is a practical one. In every field of litigation and contact between citizen and state there is a small number of people who find such contact therapeutic. They are called vexatious litigants in the supreme court. I cannot imagine that this Act will not produce a well drilled cohort of such correspondents with government departments. I do not suggest that the regulations should deter them by fee alone, but I think that they should encompass some method of identifying vexatious requests; otherwise, such requests would undermine the proper purpose of the Bill.
Secondly, Clause 8(4)(a) states that regulations may prescribe,that no fee is to be payablein certain cases. I assume that that will include cases where the applicant for the information cannot afford to pay the fee. I refer to people on income support, people who qualify for legal aid because of their income requirements and so on.
The third area that causes me more concern is the following. If the limit is to be set at £500—which I applaud—that may well be a gross under estimate of the actual cost of making the appropriate inquiries to meet the request. Perhaps the regulations ought to allow special provision to be made in certain cases. For example, I refer to people who wanted to find out what was actually going on during the BSE saga. The documentation on that issue is enormous and the cost of providing it may well be huge. I am concerned that we should approach such practical considerations now and not be faced with problems later. However, 995 consideration of such expense may engender specious correspondence between government and applicant which is designed to provoke not one request for information but seven or eight in order to increase the individual cost and cover the actual cost, which may well be beyond £500. I concentrate on that point because we must not lose public confidence in the legislation at stage one. For every applicant, stage one will involve asking himself about cost.
The fourth and last consideration is one on which I may have to invite my noble friend the Minister to write to me; namely, the consequences of the Aarhus Convention which the Government signed two years ago. It deals with access to information on environmental matters and is extremely wide-ranging. It requires government to guarantee such access at reasonable cost and with expedition. One or other of my learned friends may have that convention at their fingertips. I have it at my fingertips only because of the debate that took place the other day. It is an important matter. Which two areas will cause the most concern? I suggest that they are health and safety, which usually involve many documents, and the environment. The regulations must meet that challenge.
§ 10 p.m.
§ Lord Bassam of Brighton
I suppose that my opening line ought to be that costs should not be a determinant with regard to access to information. Then I should add a series of caveats. I have a feeling that my speaking notes will take us in that general direction. It is perhaps worth making the point—parliamentarians will be familiar with this—that cost is a determinant, even in this Chamber and in the other place. However, having said that, I am always impressed by the wide range of information that Members of this Chamber and of the other place can elicit through parliamentary Questions. I note that only yesterday the noble Lord, Lord Lucas, obtained much information on CJD in a Written Answer provided by my noble friend Lord Hunt of Kings Heath. No doubt cost considerations came into the provision of that information, but the public interest of providing that information was more important than cost considerations in that case.
I turn to government Amendment No. 90. I state my intention to oppose the Question that Clause 14 should stand part of the Bill. The proposed new clause after Clause 11 is consequential on the restructuring of the Bill. It brings together those clauses concerned with access to information which would otherwise be exempt by virtue of the cost of compliance exceeding the appropriate limit.
This new clause effectively replaces Clause 14 of the Bill as drafted. This makes provision for the charging of fees for public interest disclosures. The Bill provides for a clear duty on public authorities to disclose information in the public interest. There is no need to make specific provision for the charging of a fee for the disclosure of such information. The fee provisions are the same as for the disclosure of non-exempt 996 information. Clause 14 is now redundant. I shall commend that the Committee opposes the Question that Clause 14 shall stand part of the Bill.
Amendment No. 84, tabled by the noble Lord, Lord Lucas, would require the public authority to inform the applicant whether it held information of the description specified in the request in accordance with Clause 1(1)(a) even if to do so would exceed the cost limit set out in regulations if the applicant were prepared to pay the excess cost. That would give the applicant the right to determine the work priorities of the authority. We take the view that this could be disruptive and detrimental to the work of that authority. That would be the case in particular with respect to a smaller public authority. I gave an example earlier of GPs whose resources would be unlikely to be sufficiently large or flexible enough to adapt to such demands even where the full costs of the additional work were to be recovered.
I understand the well-intentioned thoughts underlying the amendment. It is designed to prevent the Government and public authorities from limiting the scope of information that should be disclosed by manipulating the fee regulations However, it would create a regime in which authorities could be exposed to unreasonable demands on their resources and the Government would be left with insufficient flexibility to respond quickly and effectively to changing demands or circumstances.
The parliamentary procedures will ensure that the fees regulations are subject to appropriate scrutiny. For those reasons I hope that the noble Lord will not press the amendment.
Amendment No. 87 which stands in the name of the noble Lord, Lord Lucas, concerns the Secretary of State's power to make regulations about the appropriate limit on the cost of providing information when two or more requests are made either by one person or by different persons who appear to be acting together. If accepted, the amendment would limit this power to make regulations to situations where requests are closely related and made within a month. We consider that it is more appropriate to deal with this kind of matter in secondary legislation which gives greater flexibility. We believe that the amendment is unnecessary. Again, I invite the noble Lord not to press the amendment.
§ Lord Lucas
I agree with the noble Lord that it is better to deal with it in secondary legislation. But can the Minister confirm that the matter will be dealt with in secondary legislation and that the periodic request—I hope that I convinced him that it was entirely reasonable—will not be caught by the regulations?
§ Lord Bassam of Brighton
I can confirm that. It will be dealt with in secondary legislation.
Amendment No. 85, in the name of the noble Lord, Lord Mackay, has three parts. The first part also requires the public authority to confirm or deny whether it held information regardless of the cost of so 997 doing. The second part enables an applicant to appeal to the commissioner where the authority failed to comply with the request under this exemption and would authorise the commissioner to consider such an appeal at his discretion. The third part provides that the commissioner direct that the authority disclose whether it held the requested information and would prohibit any appeal by the authority against that direction.
New subsection (a) would effectively give the applicant the right to determine the work priorities of the authority and potentially skew the priorities of that authority. I hope that the noble Lord will reflect on that point and not press the amendment.
New subsection (b) would require the authority to balance the public interest benefit in complying with the request against the cost of compliance where to do so exceeds the appropriate limit. I suggest that the amendment is not necessary. Nothing in the Bill precludes the release of such information. Where a public authority has the power to disclose the information it would be required to consider doing so under administrative law. In considering this, it would have to balance the cost of disclosing with the public interest in doing so. Given that consideration, I hope that the noble Lord will not press the amendment.
The second and third paragraphs in Amendment No. 85 would provide applicants with a right of appeal to the commissioner when Clause 11 was not complied with. Such rights of appeal would of course be necessary if the substantive effect of the amendment were agreed to. However, the Bill already provides applicants with a right of appeal if a public authority relies on Clause 11 as a reason for non-compliance.
Amendment No. 85 would also empower the commissioner to direct an authority to comply with a request without giving the authority a right of appeal to the tribunal. Placing such an unchecked power in the hands of the commissioner would be out of line with other provisions in the Bill, which would be untenable. Again, I invite the noble Lord not to move the amendment.
Amendment No. 86 would place in the Bill a statutory minimum appropriate limit of £500. That is the maximum that the Government proposed, but we believe that it is more appropriate to deal with such matters in secondary legislation rather than in the Bill. As I said previously, secondary legislation provides greater flexibility. We should be able to adjust the limits in the light of experience. In view of the fact that we have already proposed a maximum appropriate limit of £500 for inclusion in such secondary legislation, I hope that the amendment will not be moved.
Amendment No. 88 would require the Secretary of State to make regulations in relation to costs and the way in which they might be calculated. The structure of the clause effectively imposes that requirement on the Secretary of State, if he wants to take appropriate authorising action. That gets round the need for the amendment, which is unnecessary and should be withdrawn.
998 Amendment No. 89 states the types of costs about which regulation may make provision for the purposes of Clause 11. The amendment requires regulations to bebased on the marginal cost of locating the information and of related disbursements".That is overly prescriptive, and we have advanced comparable proposals. As with the overall cost limit, the matter is more appropriately dealt with in secondary legislation.
Amendments Nos. 71 to 74, which were tabled by the noble Lord, Lord Mackay, would specify and limit the circumstances under which a fee may be charged. Amendment No. 71 would impose on the Secretary of State a statutory duty to include in the regulations the matters that are described in paragraphs (a) to (c) of Clause 8(4). Amendments Nos. 73 and 74 would require the Secretary of State to include in the regulation the matters that are referred to in those amendments. The first such provision would set a statutory limit of 10 per cent on the cost of compliance, which may be charged for complying. However, no separate provision is made in respect of actual disbursements, which would include, for example, photocopying and postage. Again, we believe that that matter is best dealt with in secondary legislation.
Proposed new paragraph (e), which would be created by Amendment No. 74, would introduce a statutory duty to set fees at a sufficiently low level to facilitate access to information by applicants. We are not persuaded that that is necessary. We have maintained throughout that public authorities will bear the bulk of the cost of providing information, and we can reasonably trust them to do so. Our preferred formula is contained in the consultation paper and reflects the provisions of Amendment No. 74. However, the negative resolution procedure would ensure that regulations in relation to fees were not prohibitive. I hope that those amendments will not be moved.
Amendment No. 72, which would amend Clause 8(4)(a), would require the Secretary of State to prescribe in the regulations the circumstances under which a fee might be charged. We are not convinced that that amendment takes sufficient account of the scope of the legislation. If it were agreed to, it would require the Secretary of State to identify all types of information and the circumstances under which any one of the 50,000 authorities that will fall under the scope of the Bill may charge. We believe that that would be an impossible task. The regulations would be complex, confusing and difficult to interpret. Drawing up such regulations could place unfair financial burdens on the many small authorities that will be covered by the Bill. We want a fair and proportionate system for charging, not one that is over-complex or prescriptive. If not, there is a real risk that authorities will concentrate too much of their efforts on deciding fees and not enough on providing the information requested.
That brings me to Amendments Nos. 101 to 103. Amendments Nos. 101 and 102 would be similar in effect to Amendments Nos. 72 and 74, but in relation 999 to fees for disclosure in the public interest. We do not want to make over-complex regulations that could undermine the object of the Bill, which is to achieve greater openness. For that reason, we do not think that the amendments should be pressed.
Amendment No. 103 would add the words "which shall be" in Clause 14(3). I am not convinced that that would add anything to the Bill.
Amendment No. 90 is a government amendment providing that a public authority may charge for the communication of any information not required under Clause 1(1) because the cost of compliance exceeds the appropriate limit and is not required by law. It sets out that fees may be determined by the public authority in accordance with the regulation. The amendment will enable public authorities to charge for large amounts of information that might otherwise not be disclosed due to economic considerations. It thus ensures greater openness.
I shall try to deal with the questions that have been asked. The noble Lord, Lord Lucas asked whether periodic requests would be aggregated for the purpose of Clause 11. The short answer is no. The regulations currently in draft will make that clear. We shall place the draft fees regulations in the Library as soon as possible—certainly before Report.
The noble Lord, Lord Hunt of Wirral, asked how costs would be calculated. That will be set out in the regulations. He also asked whether officials might abuse the £500 limit. Two factors militate against that. First, information that can be released up to £500 must be released. Secondly, the commissioner can assess whether the clause is being properly relied on.
The noble Lord, Lord Brennan, asked some important questions. I do not particularly want to deal with vexatious litigants and the green ink brigade, but they exist and we are sensitive to their concerns. We are also sensitive to the real concerns of people who are not best placed to seek information using the legislation because of cost considerations. I shall reflect further on the point about the Aarhus Convention.
§ 10.15 p.m.
§ Lord Cope of Berkeley
Once again we have been given considerable food for thought on fees. I shall not respond in detail to the Minister. We shall reflect on the issues in the coming days. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 72 to 74 not moved.]
§ Clause 8 agreed to.
§ Clause 9 [Time for compliance with request]:
Lord Falconer of Thoroton moved Amendment No. 75:
Page 5, line 27, leave out ("subsection (2)") and insert ("subsections (2) and (2A)").
§ On Question, amendment agreed to.
§ [Amendment No. 76 not moved.]1000
Lord McNally moved Amendment No. 77:
Page 5, line 28, leave out ("section 1(1)") and insert ("sections 1(1) and 13").
§ The noble Lord said: I have the pleasure of moving this amendment on behalf of my noble friends Lord Goodhart and Lord Lester. It would replace the unlimited period for disclosing information in the public interest with a 20-day limit. We strongly believe in the amendment. The legislation will work best with good will and common sense, but it is incumbent on us not to leave too many temptations in the way of Ministers or officials. We believe that the Bill as drafted, with a two-stage process over two different timescales, leaves such a temptation. A 20-working day limit is provided for complying with requests in general and an unspecified period, which needs only to be "reasonable in the circumstances", for disclosing exempt information in the public interest.
§ We believe that whether or not to disclose should be a single decision and that that decision should not be allowed to trickle out over a prolonged period with no clear end-point. Applicants will be told that information is exempt. That will be followed by a further open-ended wait to discover whether the authority is prepared to release the information on public interest grounds. The provision could be exploited by obstructive authorities and encourage others to relax their standards, resulting in almost unlimited delays and undermining confidence in the legislation.
§ There is no reason to believe that consideration of the public interest should be a cause for long, time-consuming delay. If difficulties are encountered in complying with the 20-day period, authorities or Ministers can be open about that. It is possible that a formal request, perhaps from the commissioner, for a further time limit could be drafted into the legislation. I believe that this is where the common-sense provisions should come in.
§ However, no overseas freedom of information Act provides extra time for public interest decisions; nor does the UK code, which also contains a public interest test. Home Office figures indicate that currently 92 per cent of code requests are dealt with within the code's 20-day limit, or the tighter limits which departments themselves set. Therefore, we do not believe that this rather loose, open-ended clause should be left in the Bill. It would be a reassuring declaration of intent if Ministers could accept a 20 working day limit.
§ Lord Lucas
I thoroughly support the amendment. It seems to me crucially important that we should not have in the middle of the Bill an unlimited timescale which can be exploited by a department going backwards and forwards, trying to find ways in which not to disclose information, or simply taking its time when someone is waiting for information and has every reason to expect that it should be delivered promptly.
1001 It is not at all clear to me who effectively will adjudicate the wording in Amendment No. 79:until such time as is reasonable in the circumstances".We are talking about information which should be produced within a few days. It seems to me that, if things were being done unreasonably, that type of clause could involve delays of weeks or months in deciding whether the matter which was taking a long time was being reasonably delayed. I do not believe that there is any protection for the citizen. At the very least, a time limit should be set down—not "unreasonably delayed" but possibly "not usually more than" or some such words—to provide a yardstick against which performance could be judged.
I also agree with the noble Lord, Lord McNally, when he says that there should be only one time limit. There is no reason why the two questions cannot be parallel-processed. If the Government are considering whether a particular piece of information is exempt, they can also consider the question of what would happen if it were exempt. Would there be an obvious public interest in disclosure? One does not have to wait for a decision on whether or not it is exempt in order to decide the second question. The two should be decided together.
The noble Lord produced the killing piece of information. Even under our present-day, reasonably relaxed arrangements, very few civil servants are properly trained in the use of the code. I believe that only 170-odd have attended the course on how to operate the code. There has not exactly been a major training scheme, but even civil servants operating on their native wit and knowledge have provided 96 per cent of answers to requests for information within the 20-day limit. When we have a fully trained, up-to-the-minute, computerised Civil Service, as the noble and learned Lord, Lord Falconer, promises us, I am certain that we shall be able to do better than that and that there will be no reason why the 20-day time limit should not cover both processes rather than just the one.
§ Lord Cope of Berkeley
I have much sympathy with these amendments. Amendment No. 80 in the name of my noble friend Lord Mackay, which leaves out subsection (3), is a provision that allows the Secretary of State to extend the 20 working days to 60 working days; that is to say, to extend it from four weeks to up to 12 weeks in particular cases.
We all know that public departments can take a long time to reply to letters. Professor C Northcote Parkinson, in his excellent advice which contained a great deal of truth among a great deal of humour, suggested that the proper way to deal with income tax inspectors was to send them a few queries, carefully targeted, so as to calculate how long it took them to reply. The size of the in-tray was measured in days. If one discovered that it took 30 days for a reply to be sent, one should write every 29 days to ensure that one's income tax file went to the bottom of the heap continually and never reached the top! That was one 1002 way of pointing out that public officials can take a great deal of time to reply. In a case like that they should not be given too much leeway.
The lengths of time are expressed in working days and the provision includes bank holidays in any part of the United Kingdom. It appears that in relation to this Bill, St Patrick's Day and other bank holidays that are observed in one part of the kingdom or another all count as non-working days throughout the public service. However, I support some of the thoughts behind these amendments.
§ 10.30 p.m.
§ Lord Bach
I shall deal with Amendment No. 80 first, as it was the last one spoken to by the noble Lord, Lord Cope. I am afraid that the poor old Government cannot win. The Bill as drafted in Clause 9(3), which Amendment No. 80 seeks to delete, mentions a period,not later than the sixtieth working day".That is taken straight from an amendment that was moved in another place, which asked that the time be,not later than the sixtieth working day following the date of receipt".That amendment was moved by the honourable Member, Mr John Greenway, Front Bench Conservative spokesman on the Freedom of Information Bill. We followed, perhaps stupidly, his amendment and so the words "the sixtieth working day" appeared in the Bill when it came to this House and now the party opposite suggests that those words should go. The Government cannot win.
There has been plenty of consultation in relation to this Bill, as referred to earlier by the noble Lord, Lord Mackay of Ardbrecknish, but I wonder whet her any consultation has taken place between the Conservative Front Bench in another place and the Conservative Front Bench in this place. It is a gentle point, but I believe it is a fair one to make in the circumstances.
The provision was amended in another place so as to limit the Secretary of State's power to extend the statutory time limit for compliance with a request. As now drafted, it provides that there should be an upper limit on the Secretary of State's powers to set a different time limit for compliance with an application. The provision in the Bill now reflects concerns expressed in another place that there should be a cap on the time limit which might he set by regulation under this provision. The Government have recognised and addressed those concerns.
We have no intention to extend the statutory time limit under the regulations, which will be made only in exceptional circumstances. Recognising other concerns expressed during Committee stage that the regulation-making power itself should be subject to close parliamentary scrutiny, regulations under subsection (3) are subject to affirmative resolution. We believe it is necessary for the Bill to retain the power for the Secretary of State to provide for circumstances under which time for compliance may be extended beyond the statutory period of 20 days set out in the legislation.
1003 The Bill will apply to some 50,000 public authorities. The Government cannot say at this stage with any certainty that those authorities can, in all circumstances, realistically be expected to comply with all requests within the statutory time limit. If it should become apparent that there is a need to extend the time limit for compliance with requests the Government will be required to justify any proposals at the time. Any regulations laid before Parliament in relation to time for compliance will be subject to full scrutiny by both Houses of Parliament under the affirmative resolution procedure. For that reason, we cannot accept Amendment No. 80.
We believe that the more serious amendments are Amendment No. 77 and the consequential Amendment No. 100 tabled by the noble Lord, Lord McNally. Amendment No. 77 would bring public interest disclosures within the 20 working day period for compliance. At the moment that period applies only to the initial determination as to whether the authority is obliged to confirm or deny that information is held and to disclose non-exempt information. The Bill provides that public interest disclosure must be made within such time as is reasonable. As Amendment No. 100 is consequential I do not need to describe what it does.
Under Clause 9(1) an authority has up to 20 working days to comply with Clause 1(1). Where the information requested is in an exempt category, the new clause will require the authority to determine whether the public interest in disclosure outweighs the public interest in maintaining the exemption taking into account all the circumstances of the case. The new clause replaces most of the provisions of Clause 13, and the Government have signalled their intention to oppose that Clause 13 stand part of the Bill when the time comes.
There are two steps involved in determining whether otherwise exempt information should be disclosed in the public interest. In making such a decision an authority must already have determined that the information is exempt. While this decision must be made promptly, it is conceivable that such a decision can take the full 20 days allowed by Clause 9(1). I offer one possible example. Let us assume that a public authority receives a request for the disclosure of information that it holds which has come from a third party. That third party may have a legal interest in the decision on disclosure, perhaps because of the operation of the common law duty of confidentiality. Under the Bill it is for the public authority to decide whether to disclose all or some of the information, provided that there is an exemption on which it can rely and no overriding public interest.
The authority may think it right to consult the third party, or those to whom the information relates, or those likely to be affected by the disclosure. The Secretary of State's code of practice under Clause 44 will advise authorities to carry out such consultations. But the relevant interested parties may themselves be unavailable, or the consultation may raise an issue of public interest which the authority must weigh. The 1004 amendment would, however, impose a 20 working day limit on such consideration which could leave no time for proper consideration of the public interest and any work that might be necessary if it decided that disclosure was appropriate.
Moreover, disclosure in the public interest requires an authority to take all the circumstances of the case into account in balancing that interest. Such a decision may be more complex than the original decision as to whether the information is exempt and involve consultation within the authority as well as further consultation along the lines above with those who would be affected by any disclosure. Therefore, we have come to the conclusion that it is impossible to specify any time limit on the taking of such decisions because much will depend on the circumstances of each case. It is necessary, therefore, for the Bill to provide for a "reasonable" period.
The Government's amendments tabled for Clause 9 will introduce the "reasonable" period provision into that clause by virtue of new subsection (2). This is currently the effect of Clause 13, but, as the Committee knows well, the Government have tabled amendments to restructure the early part of the Bill which will have the effects of deleting Clause 13. New subsection (2A) of Clause 9 reinstates the necessary timing provisions for disclosure in the public interest.
The Government understand that if time is short, authorities may be more likely to withhold information than disclose it on the basis that where a matter is not properly considered, it is better to be safe than sorry. On the other hand, authorities may decide not to consult those affected by disclosure on the basis that that would take too long. We think we have the matter about right in that the Bill provides for a reasonable limit in order to ensure that decisions are taken soundly. To impose an unreasonable and even impractical time limit would inhibit the culture change that the Government are trying to achieve with the Bill.
We believe that the amendments, although well meant, would have the effect not only of disadvantaging authorities by imposing an impractical time limit on them but might also disadvantage applicants and others affected by disclosure by causing decisions on the public interest to be taken hastily.
"Oh", say those who are in favour of these amendments, "that is all very well, but this gives a green light to public authorities not responding". There is a sting in the tail. In order to prevent authorities from stalling, the commissioner has power to issue an enforcement notice under Clause 51(2) or, where she has received a complaint, a decision notice under Clause 49(4), requiring the authority to disclose information in the public interest within a time set out in the notice. That is a safeguard in the Bill against abuse of the lack of a specified deadline on public interest disclosures and should be put in the balance when the Committee decides whether our stance is sensible or not.
We fear that the amendments would result in ill-considered decisions by authorities and might work against the culture of openness that the Government 1005 are attempting to achieve with this legislation. I hope that the noble Lord, Lord McNally, who moved Amendment No. 77, may think that there is something in what I have said and will withdraw his amendment.
§ Lord Lucas
I feel that the Government must offer more on this issue. We cannot have this unrestricted time limit without any mention in Amendment No. 79, which is where we find this wording, of any need to get a move on. Such a period as "reasonable in the circumstances" has a very relaxed feeling to it. There is no "as quickly as is reasonably possible"; there is no illustrative time limit.
The noble Lord, Lord McNally, mentioned the current rate of performance. In those circumstances, it would be quite reasonable to say that it should usually be done within the 20-day time limit allocated to deciding whether or not a decision is exempt, but can be stretched beyond that period. I understand the noble Lord's arguments but they apply to extreme cases. Yes, provision has to be made for extreme cases, but it must be quite clear that it is for extreme cases. There needs to be a yardstick in front of everyone, an expectation that things will be done quickly.
There is no indication of the point at which one might reasonably start to complain. There is no indication of whether—as I would hope—most things should happen within the original 20 days; whether we should expect an additional 20 days where this is concerned; or whether it should be an additional three months. We must have more clarity. It must be more easily operable by members of the public. Everyone must know what the expectations are. Yes, if we have to allow for exceptions, it must be made clear that those are exceptions and not allowed to become the rule.
§ Lord Bach
Before the noble Lord, Lord McNally, decides what to do with the amendment, perhaps I may say that there is a good deal in what the noble Lord, Lord Lucas, says with which we agree. In many cases we agree and trust that the two decisions will be made within the 20 working days. But we cannot accept that that will happen on every occasion; and it will not happen sometimes for good reason. In an earlier intervention the noble Lord asked who will adjudicate on "reasonable" time. The answer in the first instance is the commissioner. She will have the power to assess it, whether from a complaint or not from a complaint. Under Clause 49 she can require decisions to be made if she thinks that an authority is taking too long.
When the amendment was moved and noble Lords spoke in favour of it no mention was made of the commissioner's powers in this instance. She has a real power to make sure that public authorities do not abuse their position. Of course there is no specific time, but to say within a "reasonable" time is not as loose as the noble Lord indicates.
§ Lord McNally
I take on board what the Minister said about the commissioner's powers. They are to a certain extent stable-door-slamming powers and will become active only when abuses become apparent. We 1006 are trying to make sure that abuses do not occur in the first place. There is a problem with reasonableness. The noble Lord will have heard of the visitor in the west of Ireland who asked a local whether there was anything in Gaelic equivalent to mañana. He replied, "Nothing with that sense of urgency". Reasonableness quickly equates with mañana unless there is a spur to action.
At this stage we are willing to withdraw the amendment, but we shall certainly come back to the issue at a later stage. Whatever the Minister may say about other parts of the Bill, we feel that a "reasonable" period is open-ended and open to abuse. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 78 not moved.]
Lord Falconer of Thoroton moved Amendment No. 79:
Page 5, line 35, at end insert—
("(2A) If, and to the extent that—
§ The noble and learned Lord said: I beg to move.
§ Lord Lucas
In view of what was said in reply to the immediately preceding group of amendments, I really urge the Government not to proceed with this amendment. The idea that we should allow this bottomless pit to be inserted into the time limits in the Bill is inappropriate. I hope that the Government will take the amendment away and think again.
§ Lord Falconer of Thoroton
We have already dealt with this point, both in what I said earlier and in what my noble friend Lord Bach has just said. I do not think that it would be at all sensible for us to go over the ground again. It is quite late at night as well—a quarter to eleven—to go through the same arguments. We all know where we stand in relation to the point. Of course we bear in mind what has been said, but the Government's position has been put.
§ 10.45 p.m.
§ On Question, Whether the said amendment (No. 79) shall be agreed to?
§ Their Lordships divided: Contents, 48; Not-Contents, 12.1007
|Division No. 1|
|Alli, L.||Bassam of Brighton, L.|
|Amos, B.||Berkeley, L.|
|Andrews, B.||Bernstein of Craigweil, L.|
|Archer of Sandwell, L.||Billingham, B.|
|Bach, L.||Bragg, L.|
|Brennan, L.||Judd, L.|
|Burlison, L.||Layard, L.|
|Carter, L. [Teller]||Lea of Crondall, L.|
|Cocks of Hartclifle, L.||Lipsey, L.|
|Cohen of Pimlico, B.||Macdonald of Tradeston, L.|
|Dean of Thornton-le-Fylde, B.||McIntosh of Haringey, L. [Teller]|
|Evans of Parkside, L.||Massey of Darwen, B.|
|Falconer of Thoroton, L.||Mitchell, L.|
|Farrington of Ribbleton, B.||Parekh, L.|
|Faulkner of Worcester, L.||Rendell of Babergh, B.|
|Fyfe of Fairfield, L.||Smith of Leigh, L.|
|Gale, B.||Stone of Blackheath, L.|
|Gibson of Market Rasen, B.||Symons of Vernham Dean, B|
|Harris of Haringey, L.||Thornton, B.|
|Harrison, L.||Turnberg, L.|
|Hayman, B.||Watson of Invergowrie, L.|
|Hollisof Heigham, B.||Whitaker, B.|
|Hunt of Chesterton, L.||Williams of Mostyn, L.|
|Hunt of Kings Heath, L.||Woolmer of Leeds, L.|
|Attlee, E.||Northesk, E.|
|Cope of Berkeley, L.||Norton of Louth, L.|
|Glentoran, L.||Park of Monmouth, B.|
|Henley, L. [Teller]||Roberts of Conwy, L.|
|Lucas, L. [Teller]||Shrewsbury, E.|
|Northbrook, L.||Willoughby de Broke, L.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 10.50 p.m.
§ [Amendment No. 80 not moved.]
§ Clause 9, as amended, agreed to.
§ [Amendment No. 81 not moved.]
§ Clause 10 [Means by which communication to be made]:
Lord Lucas moved Amendment No. 82:
Page 6, line 15, leave out from beginning to ("the") and insert ("a form specified by").
§ The noble Lord said: In moving Amendment No. 82 I shall speak at the same time to Amendment No. 91, which has been moved from a previous grouping, and Amendments Nos. 104 and 125.
§ The amendments concern our Internet future and the way in which the Bill will operate. It will come into force at about the same time as our 2005 Internet government and it seems to me that we should draft the Bill with the requirements of that kind of medium and culture in mind.
§ Amendment No. 82 relates to the wording of Clause 10. At the moment, an applicant has a right to express a preference for a copy of the information in permanent form or in another form acceptable to him. I do not consider that wording to be clear enough. The amendment substitutes the words "a form specified by" the applicant.
§ If I wanted information in electronic form, as I would do, I should—we all should—be able to expect electronic information under an Internet government. I do not want to be fobbed off with a paper copy that I can make no good use of. It is quite reasonable to ask for the information in electronic form.1008
§ The public authority has to comply with such a request only "so far as reasonably practicable". If I ask for information in a form which is not practicable for the public authority, it does not have to comply with my request. But I should have a reasonable expectation that the information will be provided in the form specified by me if that is reasonably practicable. The amendment seeks to insert a better formulation of the duty which a public authority should be under.
§ Amendment No. 91 addresses the question of copyright, as do Amendments Nos. 104 and 125. If you acquire information in electronic form under the Freedom of Information Act, you will want to communicate that information. You will want to put it on your website and pass it on to other people. As currently practised by the Government, copyright is a considerable obstacle to that. It has been decaying slowly over the past few years, and this year we have at last the relinquishment of copyright in the schools performance tables by all four parts of the United Kingdom. It has been a long time in coming, but people are now free to reproduce, analyse and make use of that information on the Internet and to provide it in the way that they want to people interested in UK schools.
§ But this is a much more general problem. There is a great deal of information out there which is subject to Crown copyright merely because it is in a publication in some form or another. To try and impose that copyright in a web-based world is not sensible or feasible. Indeed, to tell someone, "Yes, you can have this information under the Freedom of Information Act but you cannot publish it"—which, in Internet terms, means you cannot tell anyone else about it because almost all Internet communication amounts to publishing—is a negation of what the Freedom of Information Act should be about.
§ The effect of Amendment No. 91 would allow public authorities to charge a fee where copyright is involved; Amendment No. 104 seeks to give the applicant the right to publish, subject to fees; and Amendment No. 125 concerns the effects of these various matters on Clause 19. It states that information is not reasonably available if it is not available in electronic form; and that information is not reasonably available if it is not free to be published on the Internet.
§ There may well be better ways of achieving these aims. It may be that this is an area which is still a matter of controversy within the Government. I hope that the Minister will be able to bring us up to date on the Government's thinking and perhaps give a reassurance that these are problems that the Government intend to address in the course of developing full electronic government by 2005. If that is the case, I hope that he will also be able to show us how these matters are dealt with in the wording of the Bill as drafted, so that when decisions are taken on this matter we shall not need to return to primary legislation but can deal with it in secondary legislation—if indeed any legislation is necessary. I beg to move.1009
§ 11 p.m.
§ Lord Cope of Berkeley
I have sympathy with my noble friend's amendment, and also with the points that he makes about copyright. However, I rise to draw attention to Amendment No. 83, which specifies that Braille and large print can be used in responding to an applicant.
It is important that the Government should make clear their attitude to this. The amendment is not an absolute insistence on all information being available in Braille; it is governed by the later provision about being "reasonable in the circumstances". Nevertheless, the amendment draws attention to the needs of those who require information in Braille or large print. The amendment was tabled in order to draw out the Government's intentions.
§ Lord Falconer of Thoroton
The intention of Amendment No. 82 is to ensure that an applicant should always be able to require that information is supplied to him or her only in his or her preferred format, to include electronic format—which I believe is what the noble Lord, Lord Lucas, has particularly in mind. The major way of seeking to achieve that is to delete the words "in permanent form". But that makes no difference to the construction of the provision. If those words are deleted, the right of the applicant is to have the material provided to him in a form that is acceptable to him so far as is "reasonably practicable". Getting rid of the words "in permanent form" would not change that at all; even if they remained in the provision, the right would be the same. So there is no real difference between the Government and the noble Lord, Lord Lucas, in that respect.
That applies equally to Amendment No. 83. Again, the applicant is entitled to receive information in a form that is acceptable to him or her so far as is "reasonably practicable". If it is reasonably practicable to provide the information in Braille or large print, it will be so provided if that is what the applicant requests. It would be wrong to make special provision for that sort of format because there may be other formats of a similar sort and there is no need simply to provide for one. Again, the requirements of the noble Lord, Lord Lucas, are met.
Amendment No. 104 would have the effect that an applicant would be able to publish any information received by him as a result of a disclosure under the Bill, subject to the payment of any fee specified under regulations made under Clause 14 or Clause 19 as amended. The entitlement to publish such information would include publication in print, on the Internet, or by any other means.
The noble Lord made clear that his Amendment No. 104 is intended to ensure that disclosure of information by virtue of Clause 1 of the Bill incorporates a waiver in respect of the applicant of intellectual property or copyright rights in the information, subject, of course, as the noble Lord acknowledges, to the payment of a fee. It was never the Government's intention that FoI legislation should result in a transfer or other weakening of existing 1010 intellectual property or copyright protections. The Government recognise the importance that modern technology now places on the effective exploitation of publicly held and available information. That applies not just to FoI information but to all government published information. They are considering separately how publicly held information may be most effectively made available for commercial or other exploitation without putting at risk the question of copyright and the status and effectiveness of those public bodies such as the Ordnance Survey which operate under a trading fund regime.
The noble Lord asked what the developments are on the issue. As noble Lords know, most central government information is subject to Crown copyright. The regulation and licensing of Crown copyright rests with the Controller of HMSO. The management of Crown copyright has been the subject of a wide-ranging review process. Following consultation with private and public sector interests, a simplified and streamlined system for licensing Crown copyright was announced by the Government on 6th September. An on-line click-use pay class licence will provide a mechanism covering the re-use of a wide range of government information which is quick and simple. Charging will be based on a marginal cost model, which will in cases where information is published officially mean a nil cost to the user. Other principal benefits address the demand for a one-stop shop approach to the licensing of government information, so avoiding the need to negotiate separately across government with individual departments and agencies. Therefore, we are addressing these issues in a much wider way than simply in relation to freedom of information.
§ Lord Lester of Herne Hill
Can the Minister say whether similar liberalisation will occur in relation to parliamentary copyright, or does this apply only to Crown copyright? Perhaps the noble and learned Lord would like to consider the matter at a later stage. It is very important because of the fact that the property with which we are concerned—the parliamentary copyright—ought to be public property and not the property of these Houses.
§ Lord Falconer of Thoroton
I do not know the answer. Off the top of my head, I suspect that Crown copyright is a matter for the executive, whereas parliamentary copyright will be matter for the parliamentary authorities. I do not know if that is the right answer. I shall therefore check on the position and write to the noble Lord in that respect.
§ Lord Lester of Herne Hill
I raised the matter because in Australia and the United States there are special exemptions to deal with the situation. It is a very important issue. I realise that it may not be within the scope of Government's power, but I should be grateful if the matter were clarified at some point.
§ Lord Falconer of Thoroton
The Clerk at the Table nodded when I said what I said. Therefore, the noble Lord can take that as an indication that I may be in the right area.
1011 Amendment No. 125 would introduce two new subsections to Clause 19. The first of these would have the effect that a public authority would not be able to claim an exemption from disclosure of requested information on the grounds that the information was exempt because it was already "reasonably accessible" if access to that information was not in an electronic format "reasonably" requested by the applicant. The second subsection of the amendment would provide that information is not considered to be reasonably accessible if the applicant were not free to publish that information, subject to the payment of a fee.
As to the first of these proposed new subsections—namely, that it should not be treated as "reasonably accessible" if it is not available in electronic format—this is presumably intended to ensure that a public authority would not be able to avoid providing information in the applicant's preferred electronic format simply because that information may have been previously published in another format and be reasonably accessible in that format. No similar provisions are proposed in respect of requests for information already reasonably accessible but which an applicant may wish to receive in a different but non-electronic format.
Therefore, the noble Lord is suggesting a special regime to apply where it is reasonably accessible but not in electronic form. Nevertheless, Clause 19 would not apply. It would result in public authorities being required to carry out considerable additional work in respect of information that they had already made available in the public domain and could give either an applicant or a pressure group the power potentially to disrupt the work of an authority by making excessive and unreasonable demands for information to be converted into a preferred data format. So at present we are not attracted to the proposal in the first part of this amendment.
Again, as regards the second subsection, in which an applicant would be free to publish such information subject to the payment of a fee, I believe that I have already dealt with that in my remarks. That deals with all the amendments tabled by the noble Lord for this evening, except Amendment No. 91 which seeks to make provision in the Bill for a public authority to charge an applicant where that applicant is seeking to publish information disclosed to him under the Bill where copyright of that information is held by the authority. The effect of the amendment would be to impose a charge for the transmission of the information. That is already provided for in Amendment No. 90. Therefore no further amendment is required. I would like to make it clear that in so far as his amendment supposes a right to get through copyright on the payment of a fee, that would not be permissible. In those circumstances I invite the noble Lord to withdraw his amendments.
§ Lord Lucas
I am grateful for those replies. The Minister has given comfort in respect of at least half of that for which I was looking. I should be grateful if his officials would send me a copy of that September 1012 document because it is pretty vital to the consideration of the noble and learned Lord's replies that I understand what the Government are proposing in this area.
So far as my first amendment to Clause 19 is concerned, I am disturbed by the implication that if, as apparently happens, government agencies which have published their 1998 annual reports in text and have electronic copies will still be able to refuse to provide applicants with an electronic version because the paper version has been published. I do not find that a satisfactory situation. I accept that, as the noble and learned Lord says, my wording is not perfect, and I will read what he has said. I hope that he does not mean that he regards that situation as satisfactory, certainly not come the year 2005 and electronic government. In respect of particular formats that may be fine. I can see the difficulty that it must not be possible for people to refuse to provide information on the grounds that something inherently unsatisfactory is out there in the public domain. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cope of Berkeley had given notice of his intention to move Amendment No. 83:
Page 6, line 15, at end insert ("including Braille and large print").
§ The noble Lord said: It is extremely tempting to press this amendment in order to celebrate the paralympics, but I shall not move it.
§ [Amendment No. 83 not moved.]
§ Clause 10 agreed to.
§ Clause 11 [Exemption where cost of compliance exceeds appropriate limit]:
§ [Amendments Nos. 84 to 89 not moved.]
§ Clause 11 agreed to.
Lord Falconer of Thoroton moved Amendment No. 90:
After Clause 11, insert the following new clause—