HL Deb 19 October 2000 vol 617 cc1208-300

4.23 p.m.

The Minister of State, Cabinet Office (Lord Falconer of Thoroton)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Gardner of Parkes) in the Chair.]

Clause 13 [Disclosure in public interest]:

[Amendments Nos. 97 to 100 not moved.]

On Question, Whether Clause 13 shall stand part of the Bill?

Lord Falconer of Thoroton

I have already spoken to Clause 13, indicating that we are deleting and replacing it with a new Clause 2. Therefore, I oppose the Question that Clause 13 shall stand part of the Bill.

Clause 13 negatived.

Clause 14 [Fees for public interest disclosure]:

[Amendments Nos. 101 to 103 not moved.]

On Question, Whether Clause 14 shall stand part of the Bill?

Lord Falconer of Thoroton

I have already spoken to Clause 14 and I oppose the Question that it shall stand part of the Bill.

Clause 14 negatived.

[Amendment No. 104 not moved.]

Clause 15 [Refusal of request]:

Lord Falconer of Thoroton moved Amendment No. 105: Page 8, line 39, leave out subsections (2) and (3) and insert — ("(2) Where—

  1. (a) in relation to any request for information, a public authority is, as respects any information, relying on a claim—
    1. (i) that the duty to confirm or deny is excluded only by a provision of Part II not specified in section (Effect of exemptions)(3), or
    2. (ii) that the information is exempt information only by virtue of such a provision, and
  2. (b) at the time when the notice under subsection (1) is given to the applicant, the public authority (or, in a case falling within section (Decisions relating to certain transferred public records)(3) or (4), the responsible authority) has not yet reached a decision as to the application of subsection (1)(b) or (2)(b) of section (Effect of exemptions),
the notice under subsection (1) must indicate that no decision as to the application of that provision has yet been reached. (3) A public authority which, in relation to any request for information, is to any extent relying on a claim that subsection (1)(b) or (2)(b) of section (Effect of exemptions) does not apply must, either in the notice under subsection (1) or in a separate notice given within such time as is reasonable in the circumstances, state the reasons for claiming— (a) that, in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the authority holds the information, or (b) that, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.").

On Question, amendment agreed to.

Lord Lucas moved Amendment No. 106: Page 9, line 17, leave out ("12") and insert ("12(1)").

The noble Lord said: The interest behind the amendment is to understand why Clause 15(5) should apply when the public authority is relying on a claim under Clause 12(2). I differentiate between claims which have been judged to be vexatious and those which are merely repeated. I am not sure why the relief which is granted to public authorities in Clause 15 should be extended to repetitive rather than just vexatious requests. I beg to move.

Lord Bassam of Brighton

The Government believe that there must be a limit on the duty placed on a public authority to respond when applications are vexatious or the same application is made repeatedly and the authority has complied with it. It may well be that the purpose behind the amendment is to prevent public authorities simply refusing requests under Clause 12, giving notice of the reason to the applicant, and then simply ignoring all further identical or substantially similar requests.

It is worth pointing out to the Committee that there is an inbuilt safety mechanism within Clause 15 at subsection (6). If in all the circumstances it would be reasonable for the public authority to serve a further notice on the applicant stating what it is relying on in refusing the application, it must do so. The clause as set out in the Bill is the most practical and sensible approach and I remind the Committee that if an applicant considers that a public authority has acted unreasonably, either because the period specified in the reply is too long or because such a period has not been specified at all, or considers that the authority is otherwise acting unreasonably in not providing full reasons for not releasing the information sought, he or she can refer the case to the commissioner for an answer. We believe that that is sufficient safeguard in those circumstances.

I hope that that explanation of how we see this part of the legislation working will encourage the noble Lord to withdraw his amendment.

Lord Lucas

I thank the Minister for that explanation and I shall consider it carefully. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15, as amended, agreed to.

Clause 16 [The Independent Commissioner and the Information Tribunal]

4.30 p.m.

On Question, Whether Clause 16 shall stand part of the Bill?

Lord Mackay of Ardbrecknish

We come to an interesting debate; namely, how the Freedom of Information Act, as it will be, should be policed. Under the current provisions of the clause at certain times the data protection commissioner should, so to speak, double up—moonlight—as the information commissioner. The amendments in my name, most of which are consequential—we are now considering the principle—would not give that task to the data protection commissioner but set up an information ombudsman backed by a parliamentary information committee. The committee would be appointed from Members of both Houses of Parliament and act in much the same way as some of the present committees where commissioners or ombudsmen report to Parliament.

There is a tension, which I believe the Committee has debated once or twice before, between the role of the data protection commissioner, which is to ensure rights of privacy, and the role of the freedom of information commissioner, which is to ensure openness. Just stating it in that way shows the contradiction: one is in the business of ensuring personal privacy; the other is concerned with ensuring government openness. There is a danger that in certain cases if the duty falls to the same person the balance will come down in favour of privacy and against openness.

Part of the reason is that, as the Government may argue shortly, the role of the data protection commissioner results from an EU directive which must take precedence over national legislation. It is slightly odd that we are placed in that position, but there we are. Therefore, if the data protection commissioner in her role as the freedom of information commissioner has a conflict, she must place data protection above the need for openness. We believe that that is unsatisfactory.

We also believe that it is unsatisfactory to remove some of these responsibilities from Parliament. It may come as a shock to the present Government, but Parliament is supposed to be the body which keeps the executive in check and calls it to account. For a number of reasons, I do not believe that that role has been performed terribly well in the other place. Dare I suggest that it has been performed slightly better in this Chamber? The freedom of information legislation will give the citizen a role which is perhaps most frequently exercised via pressure groups, journalists, MPs, or would-be Members of Parliament. After all, no longer will MPs be able to be brushed aside with the kind of Answers to which noble Lords are accustomed. They do not tell one anything but they read magnificently and appear to respond to the Questions. MPs will be able to use the freedom of information legislation if they believe that the parliamentary Answers that they receive are less than adequate.

Parliament has a major role in this issue. To bring in an outsider in the form of the freedom of information commissioner diminishes the role of Parliament, which I do not believe is sensible. My series of amendments means that, rather than give that role to the data protection commissioner or appoint an independent person who is not the data protection commissioner, the creation of an ombudsman should root the system to police the Freedom of Information Bill firmly in Parliament where it belongs.

I do not need to go on any longer. It is fairly easy to explain the amendments, and the case is self-evident. I shall need a good deal of convincing by the Government that we are better off with the data protection commissioner rather than either an independent commissioner or, better still, a parliamentary ombudsman who is responsible to and will report to Parliament, which is supposedly the rock on which people's liberties depend. Parliament is supposed to be the place which probes and calls government to account; it looks into the deepest recesses where the executive often wants to keep things, finds out what is in there and informs itself and the public. That is what MPs are for, and we should not take that role away from them. The way to link the Freedom of Information Act, as it will be, with both Houses of Parliament is via an ombudsman.

Lord Goodhart

I am somewhat puzzled by this group of amendments. Why have an ombudsman? The usual role of such an individual, for example the Parliamentary Commissioner for Administration, who is the original ombudsman, is to make non-binding recommendations and act more as a mediator than judge. That is the general rule, but there are exceptions to it. For example, the pensions ombudsman has judicial powers. However, that is a semantic point. These amendments do not propose to change the role of the freedom of information commissioner under the Bill. However, they separate the role of the data protection commissioner from that of the freedom of information commissioner. There is undoubtedly a case for that, although I am not sure that it is a persuasive one. In some countries these roles are combined; in others, they are separated.

The real oddity here is that the appointment of the freedom of information commissioner is to be made by a parliamentary committee rather than the Crown. To begin with, it is rather odd that a Joint Committee of both Houses should appoint an officer of the House of Commons, as the amendments provide. As the noble Lord, Lord Mackay of Ardbrecknish, pointed out, the role of Parliament is legislative and to call Ministers to account. However, the role of the freedom of information commissioner under these proposals is not legislative but judicial. There is no precedent of which I am aware for Parliament, or a committee of both Houses, to make such an appointment. I believe that it is quite inappropriate for an officer of the House of Commons to take judicial decisions, even if they are binding on the executive. The executive is properly called to account by parliamentary proceedings, not by setting up what may be called a parliamentary judiciary. For those reasons, which are largely constitutional, I am unable to support the proposal to set up an information ombudsman appointed directly by Parliament.

Viscount Goschen

I find my noble friend's argument persuasive. I believe that he identifies a significant issue of conflict. My noble friend puts forward one potential solution which is to establish another body so that there is not a joint poacher/gamekeeper authority, as appears to be suggested in the Bill. At this stage it is important to look very carefully at the regulatory arrangements to be put in place to ensure that the structure is correct. I am sure my noble friend does not claim that his amendments are the last word as to what can be put in place, but they are one very firm proposal as to how to address the problem which the noble Lord, Lord Goodhart, recognised. Although the noble Lord agreed with the amendments to a certain extent, he was unable to support them for the constitutional reasons that he put forward.

At the very least we need a robust argument from the Minister as to how he proposes that any potential conflicts are to be dealt with. My noble friend put the issue very simply when he said that essentially the data protection commissioner had the job of protecting information and ensuring that it was not disclosed beyond that which was appropriate, whereas the new body would have the inverse role. We look to the Minister for an explanation as to how such conflicts can be resolved.

Lord Lester of Herne Hill

I have a particular interest in ombudsmen. Indeed, introduced a Bill to attempt to widen the powers of the poor wee office of ombudsman, as it now stands in this country, to allow direct access to him from the public. I know that it is being sympathetically considered in the Cabinet Office as a proposal.

I am delighted that the noble Lord, Lord Mackay of Ardbrecknish, has decided to put the Swedish word—or is it a Danish word—"ombudsman" into his amendment. But, with great respect, I think that the amendment is misconceived. Leaving aside the constitutional problems about who will appoint this office holder—I should like to see Parliament notified in advance of appointment, but that is another matter—the noble Lord, Lord Mackay, has given a very good reason against his own amendment. The good reason is that there is a balance to be struck between competing rights and interests. On the one hand, there is a public right of access to government information; and there is also a personal right of access to private or personal information. The data protection regime is designed to protect part of that. This Bill is designed to protect the other part of the balance. There is no better way to ensure a fair balance between what are inevitably rights in conflict or rights to be balanced than to have the same office holder, namely a data protection commissioner, dealing with these rights and a balance between them.

Perhaps I may say that the present Data Protection Commissioner, Elizabeth France, demonstrated extremely effectively in her evidence to the Select Committees of both Houses on this Bill and on the data protection legislation that she is well aware of the problem raised by the noble Lord, Lord Mackay of Ardbrecknish.

The noble Lord rightly says that the problem is that under European Union law the right to be protected in one's personal privacy is anchored in a strong directive and statute, whereas there is no corresponding right in European Union law to public access to information of the same character. But it seems to me that the way to address that is to make sure that the right enshrined in the Bill is strong and that—the other side of the coin—personal privacy, confidentiality and government interests should be put in the balance as exceptions to that basic right. In that way there is a proper framework. That is what the Bill is designed to do.

I see no point in having two office holders who will be in conflict with each other, one dealing with data protection and personal privacy and the other dealing with public right of access to official information. It is surely better that one person should do the necessary balancing of these different rights and interests.

4.45 p.m.

Lord Howie of Troon

We are dealing with the Question of whether Clause 16 shall stand part of the Bill. That has been put to the Committee by the noble Lord, Lord Mackay of Ardbrecknish, in two ways. First of all, he has pointed out how there is an inherent conflict in placing the work on the Data Protection Commissioner. That is a strong point. I am inclined to agree with him. However, the noble Lord went on to say that we should not do that; we should do something else. The something else is really to place the onus in another place. That was dealt with by the noble Lord, Lord Goodhart, fairly firmly. I am inclined to agree with him. So I am now agreeing with the noble Lord, Lord Mackay of Ardbrecknish, on the first part of his proposals and with the noble Lord, Lord Goodhart, on the second part. That is a situation I frequently find myself in. It is known colloquially as confusion.

However, I see a way out of that confusion. Since Clause 16 is unsatisfactory, I would be half inclined— although not wholly because I am a party man after all, as the noble Lord, Lord Mackay, knows—to go with him in taking the clause out of the Bill, leaving a hole in the Bill. I would not then go on to put his proposal into the hole. I would expect my noble friend to consider this lacuna in the Bill and think of something else to put in it which would deal with the quite firm objective which the noble Lord has proposed. So I resume my seat and sit, as so often, on the fence.

Lord Bassam of Brighton

The noble Lord, Lord Mackay, started his contribution off by talking about the current Data Protection Commissioner ending up moonlighting. I listened to his argument and I thought it resembled more moonshine than moonlight. I am not convinced at all by what he said. We see it this way. By renaming the Data Protection Commissioner and the Data Protection Tribunal and combining the data protection and freedom of information functions we will have an integrated and coherent approach to the monitoring, promotion and enforcement of compliance of the freedom of information and data protection regimes.

The arrangements in the Bill are logical. They are certainly workable; and one information commissioner will be in a far better position to provide a consistent approach to information management, bringing together the two different strands of information covered by both regimes.

An integrated approach will bring particular benefits where decisions about third party access to personal information—that is, personal information about other people—require review by the supervisory authority. I am sure that public authorities will benefit from receiving advice on the interpretation and application of freedom of information from one source and there being just one official responsible for promoting good practice on information issues.

I am equally sure that having one information commissioner will be beneficial to ordinary members of the public, especially since under the Bill's proposals a potential applicant for information does not need to specify which legislation the application is made under. As I have said, many requests are likely to be for a mixture of personal and other information. If an applicant believes that information applied for should have been released, then there is a clear avenue of complaint to the information commissioner under the Bill as drafted. But I think that confusion would reign under the noble Lord's proposals.

It is worth looking also at the appellate arrangements. The noble Lord's intention is to create a separate tribunal. It seems reasonable to assume that there would be some economies to be gained from having one tribunal covering both freedom of information and data protection. That is exactly what our proposals achieve. They also do more than that. It is likely that a significant proportion of appeals will have a personal information aspect. Under our proposals one tribunal will be able to cover both freedom of information and data protection issues. That will have two benefits: first, it will result in more efficient appeals processes; and, secondly, it will be more easily understood by the public.

The proposal in subsection (1) of new Clause 16 has the effect of establishing a Joint Committee of the House of Commons and the House of Lords. There are already effective arrangements in place to allow Parliament, either directly or through the appropriate Select Committee, to monitor the effectiveness with which legislation is being implemented. It would of course be a matter for the appropriate Select Committee to come to a view on how much of its time it should devote to information issues.

Subsection (7) of new Clause 16 would enable the proposed parliamentary information committee to appoint members of an information tribunal, while subsection (8) of the new clause would enable the Lord Chancellor to appoint one further member of the information tribunal.

By virtue of Clause 16 of the Bill, the provisions of Sect ion 6 of the Data Protection Act 1998 will apply to appointments to, and membership of, the information tribunal. These provisions are there to ensure that the appropriate skills and viewpoints are brought to the tribunal. In our view, it would be a retrograde step to substitute the appointments proposals put forward in the noble Lord's amendment for the arrangements in the Bill.

Subsection (5) of the new clause concerns reports to be laid before Parliament. Subsection (5) is entirely unhelpful. To require the commissioner or ombudsman to publish details of instances where public authorities have failed to comply with guidance—for example, a practice recommendation—is likely to damage any spirit of mutual co-operation that has been established and developed. It is far preferable to leave it to the commissioner's discretion whether to anonymise or summarise recommendations made and the outcomes, as we believe she is likely to do, or whether to refer directly to particular instances, since she will be in the best position to judge when to effectively "name and shame". In cases of failure to comply with a decision or enforcement notice, there is in any case, under Clause 53, recourse to the courts. We believe it is better left to the commissioner's discretion as to what details to publish.

The noble Lord said that the notion of an ombudsman would get rid of confusion of role. That does not happen in Ireland, where the system is very similar to the one that we describe in the Bill; it does not happen in New Zealand; it certainly does not happen in Australia. The only comparable system with the noble Lord's proposed arrangement is that in France. I leave other Members of the Committee to draw their own conclusions as to how effective and robust the French authorities are in working a freedom of information scheme. I believe that those we have identified as being similar to our model work very effectively indeed.

The noble Lord referred to Members of Parliament seeing their role eroded or sidelined by these arrangements. That will not be the case, particularly since the commissioner will have the obligation to report annually to Parliament. She has made it plain that she would like to see more reporting mechanisms put in place. That is exactly what Select Committees are there for. I find it strange that we might have a Joint Committee appointing an officer of the Commons with the task of going right across the public service with the freedom of information and data access legislation. That is a very strange construct.

The noble Viscount, Lord Goschen, raised the issue of conflicts of interest. The Bill sets up a clear relationship between freedom of information and data protection or data access, however one wishes to describe it. It is likely that a significant number of requests will be for a mixture of personal and more general information. Through this model we will get consistency in approach. I do not think that more conflict is inherent in combining the role of data protection and information commission in the protection of personal privacy under the Data Protection Act and the right of access; rather, it will create and generate a culture of openness under freedom of information.

Viscount Goschen

I am grateful to the Minister for giving way. One can see that organisational efficiencies would arise from having the two bodies together, just as the noble Lord has described. But how would this regulatory body act in the circumstances where an individual's data were held by a government authority but that individual had very strong reasons for wanting that information kept to that authority? The information might have been given to the authority on a certain basis and the individual concerned would want that protected. But someone—perhaps an investigative journalist—might seek access to a body of information of which that might be one piece. Surely in those circumstances there are two conflicting demands on the regulator. Does the Minister accept that, with other regulatory bodies, the trend in recent years has been to separate regulatory functions so that they are extremely carefully defined and the regulator knows whose side he is on?

Lord Bassam of Brighton

The noble Viscount hypothesises an interesting instance. There is no doubt that the commissioner will have some difficult conflicts to resolve. I do not entirely agree with his final point. It is true to say that where a service has been provided, it is unlikely that the same organisation will hold a regulator within itself. There certainly has been a shift. But here we have the benefit of a regulator looking at both sides of the coin—one side is data access and the other is freedom of information. They are two parts of the same whole in terms of the argument. We see many more benefits working in that way and, as I have said before, there are a number of other jurisdictions where the model we are offering works perfectly well and where there is now a long history and a deep tradition of developing a culture of openness.

I recognise that this is an important debate and I have listened carefully to the contributions made. However, we remain to be convinced by the noble Lord's arguments.

Lord Mackay of Ardbrecknish

It has been an interesting debate. I am not entirely sure where the reference to "moonshine" came into the Minister's answer. I have to say that I was becoming almost convinced by the noble Lords, Lord Lester and Lord Goodhart, but I started to become unconvinced by the noble Lord, Lord Bassam of Brighton. I began to think that perhaps I had a better point than the two noble Lords on the Liberal Democrat Benches suggested I had.

The slight problem with the amendments is that I brought two questions together. I brought the question of whether the Data Protection Commissioner should be the same person as the information commissioner together with the idea that perhaps Parliament should have a proper role in these proceedings. I can see that one could devise two different sets of amendments to address those two issues.

My problem—I say this to the noble Lord, Lord Goodhart—is that, although there may not be any precedent for what I am suggesting, there is not a great deal of precedent in the United Kingdom for a freedom of information Act. In fact there was not a great deal of precedent for a Data Protection Commissioner. Indeed, it is not long ago since we first had one. Therefore, I do not think that we should be too bogged down by precedent. We should be more interested in seeing whether we can get it right.

While the Minister prayed in aid the Irish situation, it occurred to me that he was not very keen on the Irish situation on Tuesday when it came to having a purpose clause. Perhaps his words that the Irish seem to have it right will come back to haunt him when we return to the purpose clause on Report.

It is a novel concept, which I may study in detail when I see Hansard, that if we have two conflicting interests—a conflict between the citizen who wants information and another citizen, some of whose information is contained in the body of information the first citizen wants—that conflict is best resolved by having the same person act for both. Does that logically mean that the courts of this country would be far more efficiently organised if the prosecutor and the defence were one and the same person? He would then be able to resolve the conflicts himself and not have to bother the judge. I do not know whether the noble Lord, Lord Lester, now wants to tell me how wrong I am about that.

Lord Lester of Herne Hill

I would not dream of ever doing that. I wonder whether the noble Lord is aware that a single judge has precisely the function of weighing the conflicting rights between personal privacy and freedom of speech and information in a whole variety of contexts. Spycatcher was one example of such conflict: between the public's right to know the information from the former spy who was disloyal and government's need to protect their secrets against unwarranted disclosure. A single body—the court—has to do that weighing and balancing using concepts like proportionality to do so. There are many other examples. If one had two courts, one dealing with free speech and the other with personal privacy, that would be—I am not sure what "moonshine" is, but something a little rude.

5 p.m.

Lord Archer of Sandwell

Before the noble Lord rises to make his response, does he agree that, although we have two counsel, one for the prosecution and one for the defence, it would be extremely odd if we were to have two judges, one to consider the case for the prosecution and the other the case for the defence?

Lord Mackay of Ardbrecknish

Yes, I can see that. Perhaps we should not take the comparison too far. However, unless I have misunderstood the position, the point here is that the commissioner will also adopt the role of trying to protect the citizen who wants information from the government department that does not want to release it. This is not only a judicial matter or a court situation; it concerns also the role of the commissioner in trying to ensure that we—the public—can get at information and that a government department cannot needlessly hide it.

It may be that I have misread the role of the commissioner. Perhaps the commissioner is not there to help, but simply to adjudicate. I may have to study that point again, although no doubt the Minister will intervene if I am entirely wrong on this. I hope that the role of the commissioner is intended to be that of being helpful to the citizen in his quest for information from what will be, frankly, fairly reluctant central government and probably even more reluctant local government.

I am still not entirely convinced by the Minister's remarks as regards why he thinks that the current proposals set out in the Bill are exactly right. He spoke a great deal about Select Committees and their role in dealing with these matters, but I am not sure which Select Committee would be involved. No specific Select Committee is to be set up to look at these issues. Perhaps the Minister can help me on this point.

Lord Bassam of Brighton

My understanding is that these kinds of issues are dealt with by the Home Affairs Select Committee. That committee has a long tradition of dealing with such matters. However, it may be that another place will take a different view. Perhaps there should be a specific Select Committee set up to focus precisely on information issues as a whole. That may prove to be a way forward.

Lord Mackay of Ardbrecknish

That was a helpful intervention. The Minister did not mention the Home Affairs Select Committee earlier, but it is clear that he envisages that committee as the relevant body. He has also made it clear that the Government will not have a closed mind should the other place decide that a separate committee should be formed to deal specifically with freedom of information and related matters.

The Home Affairs Select Committee already shoulders a fair burden. The Home Office is not an idle department of government, as noble Lords know only too well when they consider the number of Home Office Bills brought before your Lordships' House. Furthermore, the range of its responsibilities is considerable and, as a consequence, the range of matters of concern to the Home Affairs Select Committee is also considerable. However, I am not sure that the notion of the Home Affairs Select Committee taking on this added responsibility is one that fills me with a great deal of confidence, given its present workload.

Lord Goodhart

Perhaps I may suggest to the noble Lord that a more appropriate committee might be the Select Committee on Public Administration. In the other place, that committee conducted an investigation and produced a report on the draft Bill.

Lord Mackay of Ardbrecknish

The noble Lord has made a good point. However, I suspect that he may have introduced a potential element for turf wars to break out in Whitehall. After all, I had first thought that this Bill would come to us via the Cabinet Office. That was certainly David Clark's understanding. But the Bill was grabbed by the Home Office, which explains why the noble Lord, Lord Bassam of Brighton, is in his place. I believe that the team is Home Office-based, although the Minister at the Cabinet Office, the noble and learned Lord, Lord Falconer of Thoroton, is also here—in his capacity as the Government's trouble-shooter in these matters. However, I suspect that he is present more to relieve the pressure on the poor Home Office team. The noble Lord, Lord Bassam, appears to spend a great deal of his time at the Dispatch Box. When he is not battling against me, he needs to battle against my noble friends Lord Cope and Lady Blatch. That situation reflects the volume of Home Office legislation.

As I have said, the noble Lord, Lord Goodhart, has made a good point. Perhaps the Home Affairs Select Committee is not the right body to undertake this duty. Or perhaps it is exactly the right body. The Home Office may have more secrets that it wishes to keep to itself than any other individual government department. However, I shall not pursue that line of thought.

I am sorry that I have not received a more sympathetic response on this matter. It is important that Parliament's role in public life as regards matters arising between citizens and government is adequately recognised. It is a great pity that that has been taken away. I think also that it is a pity that the Data Protection Commissioner is to take on the role of information commissioner. I am not in the least convinced by the arguments that have been advanced in support of that move and I may well return to the matter in due course.

I should like to resolve the issue of whether we should deal with this matter via a parliamentary ombudsman by testing the opinion of the Committee.

5.5 p.m.

On Question, Whether Clause 16 shall stand part of the Bill?

Their Lordships divided: Contents, 141; Not-Contents, 67.

Division No. 1
Acton, L. Howells of St. Davids, B
Addington, L. Howie of Troon, L.
Ahmed, L. Hoyle, L.
Alderdice, L. Hughes of Woodside, L.
Allenby of Megiddo, V. Hunt of Chesterton, L.
Amos, B. Hunt of Kings Heath, L.
Andrews, B. Irvine of Lairg, L. (Lord Chancellor)
Archer of Sandwell, L.
Armstrong of Ilminster, L. Jeger, B.
Bach, L. Jenkins of Putney, L.
Barker, B. Judd, L.
Bassam of Brighton, L. Layard, L.
Berkeley, L. Lea of Crondall, L.
Bernstein of Craigweil, L. Lester of Herne Hill, L.
Blackstone, B. Levy, L.
Bragg, L. Lipsey, L.
Brennan, L. Longford, E.
Brett, L. Macdonald of Tradeston, L.
Bristol, Bp. McIntosh of Haringey, L.
Brooke of Alverthorpe, L. [Teller]
Brookman, L. MacKenzie of Culkein, L.
Bruce of Donington, L. Mackenzie of Framwellgate, L
Burlison, L. McNally, L.
Carter, L. [Teller] Masham of Ilton, B.
Christopher, L. Massey of Darwen, B.
Clarke of Hampstead, L. Merlyn-Rees, L.
Clement-Jones, L. Miller of Chilthorne Dorner, B
Clinton-Davis, L. Milner of Leeds, L.
Cocks of Hartcliffe, L. Mishcon, L.
Cohen of Pimlico, B. Molloy, L.
Craig of Radley, L. Morgan, L.
Crawley, B. Morris of Manchester, L.
Currie of Marylebone, L. Newby, L.
David, B. Nicol, B.
Davies of Coity, L. Oakeshott of Seagrove Bay, L.
Davies of Oldham, L. Paul, L.
Dean of Thornton-le-Fylde, B. Pitkeathley, B.
Diamond, L. Ponsonby of Shulbrede, L.
Donoughue, L. Prys-Davies, L.
Dormand of Easington, L. Randall of St. Budeaux, L.
Dubs, L. Razzall, L.
Eatwell, L. Rea, L.
Evans of Parkside, L. Rendell of Babergh, B.
Evans of Temple Guiting, L. Rennard, L.
Evans of Watford, L. Richardson of Calow, B.
Ezra, L. Rodgers of Quarry Bank, L.
Falconer of Thoroton, L. Russell, E.
Farrington of Ribbleton, B. Sainsbury of Turville, L.
Faulkner of Worcester, L. Sawyer, L.
Gale, B. Sharp of Guildford, B.
Geraint, L. Shepherd, L.
Gibson of Market Rasen, B. Shore of Stepney, L.
Gilbert, L. Simon, V.
Gladwin of Clee, L. Simon of Glaisdale, L.
Goldsmith, L. Stoddart of Swindon, L.
Goodhart, L. Stone of Blackheath, L.
Gordon of Strathblane, L. Strabolgi, L.
Gould of Potternewton, B. Strange, B.
Grabiner, L. Taylor of Blackburn, L.
Graham of Edmonton, L. Thomas of Walliswood, B.
Hardy of Wath, L. Thomson of Monifieth, L.
Harris of Greenwich, L. Tomlinson, L.
Harris of Haringey, L. Tordoff, L.
Harrison, L. Turner of Camden, B
Haskel, L. Uddin, B.
Hayman, B. Walker of Doncaster, L.
Hilton of Eggardon, B. Walmsley, B.
Hollis of Heigham, B. Warwick of Undercliffe, B.
Wedderburn of Charlton, L. Williamson of Horton, L.
Whitaker, B. Woolmer of Leeds, L.
Whitty, L. Young of Dartington, L.
Williams of Mostyn, L.
Anelay of St Johns, B. Hooper, B.
Astor of Hever, L. Howe, E.
Attlee, E. Kimball, L.
Biffen, L. Laird, L.
Blatch, B. Liverpool, E.
Boardman, L. Lucas, L.
Brabazon of Tara, L. Luke, L. [Teller]
Brougham and Vaux, L. McColl of Dulwich, L.
Buscombe, B. Mackay of Ardbrecknish, L.
Butterworth, L. Molyneaux of Killead, L.
Campbell of Alloway, L. Monson, L.
Campbell of Croy, L. Murton of Lindisfarne, L.
Carnegy of Lour, B. Noakes, B.
Clark of Kempston, L. Northesk, E.
Cope of Berkeley, L. Norton of Louth, L.
Park of Monmouth, B.
Cox, B. Peel, E.
Crathorne, L. Plumb, L.
Crickhowell, L. Rawlings, B
Cumberlege, B. Renton, L.
Denham, L. Roberts of Conwy, L.
Dundee, E Seccombe, B
Eccles of Moulton, B. Selkirk of Douglas, L.
Elton, L. Sharpies, B.
Ferrers, E. Shrewsbury, E.
Fookes, B. Skelmersdale, L.
Freeman, L. Soulsby of Swaffham Prior, L
Gardner of Parkes, B. Stewartby, L.
Glentoran, L. Strathclyde, L.
Goschen, V. Swinfen, L.
Gray of Contin, L. Taylor of Warwick, L.
Harris of Peckham, L. Trefgarne, L.
Haslam, L. Vivian, L.
Henley, L. [Teller] Waddington, L.

Resolved in the affirmative, and Clause 16 agreed to accordingly.

5.16 p.m.

[Amendment No.107 not moved.]

Schedule 2 [The Commissioner and the Tribunal]:

Lord Mackay of Ardbrecknish moved Amendment No. 108: Page 60, line 11, at end insert— ("(4) For subsection (4) there is substituted— (4) The Tribunal shall consist of—

  1. (a) a chairman appointed by the Lord Chancellor after consultation with the Advocate General for Scotland;
  2. (b) such number of deputy chairmen so appointed as the Lord Chancellor after consultation with the Advocate General for Scotland may determine; and
  3. (c) such number of other members appointed by the Secretary of State as he may determine taking into account the respective interests of each part of the United Kingdom."").

The noble Lord said: This is a small amendment. I suspect that an assurance from the Government may save me calling a Division so soon after the one we have just had.

Schedule 2 concerns who is to be appointed to the data tribunal. The amendment seeks to make clear that the tribunal shall consist of a chairman, deputy chairmen and members appointed by the Lord Chancellor after consultation with the Advocate General for Scotland. The reason for this is that as a result of the Scotland Act 1998 the structures inside the United Kingdom Government have changed and a new United Kingdom law officer—the Advocate General for Scotland—has been created. This is because the Lord Advocate, who formerly sat in this House and occasionally in the other place, and the Solicitor-General, who sometimes sat either here or in the other place and sometimes in neither, have migrated to the Scottish Parliament. Neither sits in the Scottish Parliament—much, I suspect, to the irritation of one prominent QC who got himself elected as Member of the Scottish Parliament for my constituency. I am sure he would be a worthy occupant of one or other of those offices. However, I had better not stir too much today in case news of this gets north of the Border.

These two historic law officers, the Lord Advocate and the Solicitor-General, have moved to the Scottish Parliament. Here we have only the Advocate General for Scotland. I should not say that; she is a splendid lady. It is a pity that she will lose her seat at the next election, but there you are. She fulfils the role once held by the Lord Advocate. I seek to ensure that when the Lord Chancellor decides these matters he will remember that this is not only a tribunal for England but one which covers those issues in Scotland which are still the responsibility of the United Kingdom Government.

I look forward to hearing some assurance from the Minister. If I do, I shall happily withdraw my amendment—but not until I hear that assurance.

Lord Bassam of Brighton

The amendment would have the effect of changing Section 6(4) of the Data Protection Act 1998 in regard to the way appointments are made to the tribunal. Under the 1998 Act, as amended, the Lord Chancellor is under a duty to consult Scottish Ministers on the appointment of the chairman and any deputy chairmen of the tribunal. The amendment would place a duty on the Lord Chancellor to consult the Advocate General for Scotland instead. The Advocate General for Scotland is a United Kingdom Minister and not a Scottish Minister. We see no advantage in making this change. The 1998 Act already very properly places a duty to consult Scottish interests; that consultative obligation is already there.

Additionally, the amendment would have the effect of placing a duty on the Secretary of State to take into account the respective interests of each part of the United Kingdom when considering appointments of tribunal members. Again, we think this is unnecessary because the Secretary of State is already enabled to consult. He will consult—and no doubt has consulted—very widely.

On both points we think that the consultative framework is already there and will work well. While the noble Lord always makes a good plea for extra Scottish consultation, we think that in this instance it is not necessary or justified.

Lord Mackay of Ardbrecknish

I am not nearly as satisfied as I thought I would be. The Minister seems to think that if the Lord Chancellor consulted Scottish Ministers that would suffice and I would be satisfied. The problem is that it depends on who the Minister means. "Scottish Ministers" could mean Ministers in the Scottish Parliament. They are responsible for health, education and so on in Scotland, and those matters will be covered by a Scottish freedom of information Bill and a Scottish commissioner.

Although the legislation is not yet enacted in Scotland, the paper An Open Scotland, produced by the Scottish Executive, makes it clear that there will be a dedicated Scottish information commissioner. So matters such as health and education, which are devolved to the Scottish Parliament, will be dealt with by the Scottish information commissioner and by Act of the Scottish Parliament.

My problem is with areas such as, for example, social security which are still dealt with on a UK basis. The information commissioner will look at matters relating to social security across the whole of the United Kingdom from time to time. That is why I want to know whom the Lord Chancellor might consult. It is why the amendment mentions the Advocate General. It may well be that the Lord Chancellor will consult the Secretary of State for Scotland—for as long as that office continues to exist, which I do not believe will be much longer, because, frankly, I do not think that the poor gentleman has much to do. He seems to pop up on radio and television discussing all kinds of matters other than Scottish matters. He seems to be the person in Whitehall who is known by everyone to have time on his hands, so he is sent out to defend the Government on a wide range of issues. The fact that he does it quite well is neither here nor there. It probably encourages the Government. But it illustrates that, unlike his predecessors, he does not have a demanding role.

Is it the Secretary of State for Scotland whom the Minister envisages as being consulted; or is it Scottish Ministers in Edinburgh? If it is the latter, a suggestion that he will at least examine the matter with a view to deciding whether consultation will be with the Advocate General or the Secretary of State for Scotland would go some way to helping me on this point.

Lord Bassam of Brighton

We have amended the duty to consult so that we can consult Scottish Ministers; that is, members of the Scottish Executive. We have done so because the Executive has responsibility for the legal system in Scotland, including tribunals.

Of course, we need no provision requiring one member of the Government to consult with another. That much is clear. We shall be consulting with the Scottish Executive. That is arranged by way of the duty as set out. So the consultative framework is in place. The noble Lord need not worry too much. I am much obliged to him for his kind comments about our Secretary of State for Scotland. He is indeed an excellent performer.

Lord Mackay of Ardbrecknish

Yes, but not a Secretary of State for Scotland—which is the point I was making.

I am reasonably satisfied that there will be consultation and that the Advocate General will be involved. I look forward to the day when there will no longer be a Secretary of State for Scotland. In fact, the position of Scotland vis-á-vis United Kingdom issues will have to be looked after much more by the Advocate General.

However, I presume that what I said has been heard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 109: Page 60, line 42, leave out paragraph 19.

The noble Lord said: Like the previous amendment, this is not the most important amendment before the Committee, but it deals with what appears to be a curious anomaly in this legislation. The problem was drawn to our attention by the Campaign for Freedom of Information. In this case, given that the organisation knew a good deal more about the matter than I did, I relied to a considerable extent on the excellent briefing which it provided.

The amendment deletes a provision that would make it a criminal offence for the information commissioner to disclose certain information. The offence could be committed by disclosing information to which the public would have a right of access under the Bill.

Paragraph 19 of Schedule 2 of the Bill extends the secrecy provision which applies to the Data Protection Commissioner under Section 59 of the Data Protection Act to the commissioner in her role as information commissioner under this Bill. The restriction applies to unpublished information about an "identifiable individual or business" obtained by the commissioner for the purposes of the Act. Its disclosure without the consent of the person involved would be an offence unless it was either necessary for the discharge of the commissioner's functions or necessary in the public interest, having regard to the rights and freedoms or legitimate interests of any person".

The problem is that "necessary" is a strict test. A disclosure which may be useful or desirable may not be "necessary". If the commissioner's functions can be discharged properly without releasing the information, disclosure may not be necessary. The public interest justification would presumably protect a disclosure made to the applicant or someone else with a direct interest. Disclosures to the press and public at large might not be held to be necessary in the public interest.

The presumption would be that the commissioner could not identify any Minister, civil servant or company official with whom she had held discussions or about whom requests for information had been made unless the specified conditions were met.

The most objectionable element of the restriction as applied to the role of information commissioner is that it contains no "harm" test. The offence is not limited to the disclosure of trade secrets or commercially damaging information, but could be caused by a harmless disclosure of information about an identifiable business.

The consequence would be that information about a business which an authority would have to disclose under the Bill because it did not reveal a trade secret or prejudice the commercial interests of the business concerned, could result in the commissioner being guilty of a criminal offence if she disclosed it.

The Government maintain that they are obliged by the data protection directive to create the offence under Section 59 of the Data Protection Act—although that view has been questioned by the Data Protection Commissioner. Whatever the legal position in regard to the Data Protection Act, the offence is surely not necessarily in relation to the role of the commissioner as information commissioner under this Bill since this role does not flow from the directive and the rationale for extending the offence appears to be based on an unnecessary preference for consistency. I beg to move.

Lord Bassam of Brighton

The Government believe that it would be unworkable for the commissioner and her staff to have a situation where Section 59 applied to one regime but not to another. We have said that we believe the vast majority of requests for information, and consequently complaints to the commissioner, will involve both personal and non-personal information. Information obtained by the commissioner will not, therefore, fall neatly under one regime or the other. Given this, there is no practical way to apply Section 59 to one regime and not the other.

We are aware that the Data Protection Commissioner regards Section 59 of the Data Protection Act 1998 as overly restrictive. We have also accepted the strength of the argument for an amendment to the Bill to allow information to be shared by and between the commissioner and certain other investigatory bodies and have tabled amendments that will achieve that.

Nothing in the Freedom of Information Bill would prevent the release by the information commissioner of information about the handling of complaints where that disclosure was made with the consent of the individual or company to whom the information relates, obtained in accordance with Section 59 of the Data Protection Act 1998.

However, where a person or company declines to give such consent, it is right that the information commissioner should not be able to overrule that view and routinely disclose such information. Given the commissioner's power to require disclosure of information for the purposes of an investigation under Clause 50, it is right that authorities must have confidence that such information will not be disclosed.

Furthermore, the commissioner can, and annually must, report to Parliament about the exercise of her functions under the Bill. Any disclosure of information in such reports would be done for the purposes of, and as is necessary for, the exercise of the commissioner's functions, and would therefore have lawful authority. There would be no offence under Section 59.

I hope that, given those assurances, the noble Lord will feel able to withdraw his amendment.

5.30 p.m.

Lord Goodhart

The Minister's reply is not entirely satisfactory. However, having said that, we certainly do not intend to press the amendment on this occasion. Indeed, it is unlikely that I shall wish to bring it back on a future occasion. Therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

Clause 17 [Publication schemes]:

[Amendment No. 110 not moved.]

Lord Mackay of Ardbrecknish moved Amendment No. 111: Page 10, line 23, at end insert— ("(2A) In the case of a local authority, a publication scheme must provide for the release of any agendas, minutes, background papers and reports at least three clear days before any local authority meeting to which they are to be presented. (2B) For the purposes of subsection (2A)—

  1. (a) the term "meeting" shall include (but not exclusively) meetings of any executive of a local authority, meetings of any committee or sub-committee of any executive, and meetings of any committee or sub-committee of the local authority,
  2. (b) if the meeting is convened at shorter notice than three days, the agendas, minutes, background papers and reports shall be available as soon as possible before the commencement of the meeting,
  3. (c) minutes shall include a summary of discussions, detailing (but not exclusively) substantive comments made by the participants, motions tabled and the way each participant voted on any division or vote,
(2C) Subsections (2A) and (2B) shall not apply to information which would be deemed "exempt" information under section 100I, of and Parts I, II and III of Schedule 12A to the Local Government Act 1972.").

The noble Lord said: Amendment No. 111 seeks to add to the provisions of Clause 17. Clause 17 concerns publication schemes and places a duty on every public authority to publish information of various kinds. The amendment sets out those responsibilities as far as they concern local authorities. I seek a provision on the face of the Bill that every local authority, must provide for the release of any agendas, minutes, background papers and reports at least three clear days before any local authority meeting to which they are to be presented". The amendment defines the term "meeting" in regard to a local authority.

Local authority meetings are currently rightly held in public. If the public are to know which meetings they wish to attend, they will need to know what will be discussed at those meetings. With the exception of exempt information, I believe that the public should be entitled to view the records of the arguments their representatives used in reaching their decisions and the facts on which councillors based their decisions.

Under the Local Government Act, the Government are forcing local councils to adopt new executive structures such as cabinets and directly elected mayors. In their current form, these new structures will encourage secrecy and reduce accountability. In terms of public access, local authorities will be set back many decades. As many Members of the Committee who have been involved in local authorities will know, at present council decisions have to be taken at meetings of the full council or its committees, which are subject to the Local Government (Access to Information) Act 1985. This requires meetings to be open to the public and the media. However, exempt information, such as commercially sensitive reports or that related to individual staffing issues, can be discussed and decided in private session. If the meetings are open to the public, agendas, officers' reports and background papers must be publicly available at least three days in advance.

However, cabinets will not be required to meet in public but merely to publish decisions after they have been taken. Decisions of directly elected mayors or individual cabinet members will not be subject to the provisions of the 1985 Act but again will need to be published only as a record of decisions after they have been taken. The effect will be to strip away the rights of the British people and local newspapers to observe how councils make decisions and how individual councillors vote. We on this side of the Committee believe in open local government. It was indeed my noble friend Lady Thatcher, who, as Margaret Thatcher, steered through in 1960 a Private Member's Bill to open up council meetings to the press and the public. My noble friend's then government in 1985 passed a Bill to enable the press and public to obtain access to key council papers three days before the relevant meeting.

I know from experience, albeit quite a long time ago, that councils like to take their decisions in public. I joined Oban Town Council in the mid-'60s. Interestingly enough, we were all independents but I joined together with another independent who happened to be an active Labour supporter to use Margaret Thatcher's Bill to open up the council committees, which were structured in such a way that the press could be kept out. The full council meeting was a fairly de minimis affair. With the passage of time, I can say that it was held to expedite business as quickly as possible so as to enable the councillors to partake of refreshment afterwards. While there is little doubt that when the meetings were opened up the press interest occasionally caused us a little difficulty, it also made councillors much more responsive and careful in terms of the way they dealt with certain issues. What is much more important, the press informed the wider electorate and the public of the decisions that were taken, the arguments that were put forward and other matters.

Now it appears that there is a danger the clock will be turned back to the pre-1960 days. Andrew Ecclestone of the Campaign for Freedom of Information has remarked, We are now finding a Labour Government removing the rights Mrs Thatcher gave us". I do not know whether those on the Benches opposite are happy to find themselves cast in that light. I say in support of my argument that the principal people who open up government to public scrutiny are the press. I suspect that those of us in public life love them and hate them. We love them when they expose our opponents and hate them when they expose ourselves. However, the press do a necessary job. Nowhere is that more important than in local government. On a number of occasions we in this Chamber have lamented the low turn-out and the slight interest the public take in their local authorities. It is the local press which stimulate interest and involvement in local government.

A letter from Santha Rasaiah of the Parliamentary and Legal Committee of the Society of Editors to my noble friend Lord Strathclyde states: The Society of Editors supports the Campaign for Freedom of Information and its detailed representations on the amendments necessary to transform the Freedom of Information Bill into a legislative instrument which will actually give the public, an effective right to information from public bodies. The Society has made a series of representations on the need for improvement of the Bill. Unless it is changed and actually confers strong statutory rights to information, its numerous justifications for secrecy will be used and abused, to entrench official and institutional secrecy. The Society's fears are based upon the practical experience of its members. As editors of national, regional, local newspapers and their counterparts in the broadcast and electronic media, they are well aware of the difficulties involved in extracting information from local and national … bodies". I shall not read the whole letter but it continues in that vein. It further states: The culture of secrecy will not change unless freedom of information legislation actually confers comprehensive and unambiguous information rights and disclosure". The society is obviously concerned about our passing a piece of legislation that will not enhance the position of editors and reporters of local papers.

The Derby Evening Telegraph has been battling for the council to open its executive meetings. Labour councillors led by Robert Jones had accused the paper of being distorted, emotive and destructive and had compared its coverage to Nazi propaganda. Earlier this month the council eventually agreed that cabinet meetings would be open. That is an important step forward but clearly the Derby Evening Telegraph had to work hard to achieve that.

In Newcastle, 10 out of 78 councillors sit in single party cabinet meetings closed to the public. Afterwards the council issues a list of recommendations to a further committee which, although held in public, has been accused of rubber stamping cabinet decisions. Newcastle's Evening Chronicle, edited by Alison Hastings, has campaigned against the cabinet committee led by Tony Flynn, who is the leader of the council. He does not understand what all the fuss is about. He believes that the new system is no more secretive than the old. I am not entirely sure whether that is terribly reassuring. The same is true in other parts of the country.

I believe that Members of the Committee—especially those who have been involved in local government—will appreciate the point of my amendment and the danger that, if no action is taken in the Bill, the press, and therefore the public, will have less access to information about what their local authorities are about to discuss and what they are doing than I think is right and proper. I beg to move.

Lord McNally

The record of local government over recent years has been one of prising open council after council. I like to think that where Liberal Democrats have come to power they have played a large part in opening up some of the bad old systems of local government. Where local government has been opened up, people have found that the new openness has not caused the problems threatened. Many of the abuses hidden behind secrecy have been exposed or the practices abandoned. My favourite story relates to Newham Council in East London. It had 72 Labour members. By some accident, it elected a Liberal, and changed the standing orders so that every motion needed a seconder before it got on to the council papers. That situation is in extremis.

However, we know that the tendency to secrecy in some councils still exists. This will send a shiver down the spine of the noble Lord, Lord Mackay: the Association of Liberal Democrat Councillors advises me that this is a sensible amendment that should be supported.

Lord Bassam of Brighton

I had anticipated that the noble Lord, Lord Lucas, would speak to his amendment.

Lord Lucas

I certainly shall. I was interested in the main debate. However, if the Minister chooses to reply to my amendment at the same time, I shall be fascinated to hear whether he can find anything wrong with it.

5.45 p.m.

Lord Bassam of Brighton

It is interesting that the noble Lord, Lord Mackay, began with the digression about his times on Oban Council. When I first joined Brighton Council in 1983, I, too, recall a similar discussion with the Conservative members who then ran that council. I took the council through chapter and verse of the Public Bodies (Admissions to Meetings) Act 1960, promoted by the noble Baroness, Lady Thatcher, when she was first an MP. At that time half the committees of the authority were held in secret. They covered lands; there were many estate agents and solicitors on the council. They covered property; again, there were many estate agents and solicitors on the council. They covered personnel matters. They covered finance. As a result of quoting the legislation promoted effectively by Margaret Thatcher, MP (as she then was) members were persuaded and the council became an open book. When I became leader of the council, I regretted that slightly from time to time. Nevertheless, the fight was fought for the right purpose and the right end.

In moving the amendments, the noble Lord was right to say that we need to move to an open culture. We need to have a pro-active approach towards the publication of information. We think that the scheme we have set out will achieve exactly that.

On Amendment No. 112, we think that the noble Lord's amendment is misguided. Publication schemes are published, as they should be. They are, therefore, exempt by virtue of Clause 19. But that merely avoids authorities being required to provide information under the Bill which they have already made available. Such information is not exempt in the sense of not being accessible to the public.

I draw attention to the second part of the noble Lord's amendment, which refers to, associated manuals, instructions, guidelines or other documents". We would expect such information not to be exempt for the most part; and it may well be in publication schemes—although that should be a matter for the commissioner. Perhaps the noble Lord will consider that point.

Amendment No. 111 returns to arguments debated by this House and another place during the passage of the Local Government Act 2000. Noble Lords will not be surprised to hear that I cannot accept the amendment. I do not think that these amendments fit comfortably within the Bill that we are currently discussing. They relate to requirements for access to information which will simply not be appropriate under the arrangements put in place by the Local Government Act 2000—old requirements which this House and another place have agreed are no longer appropriate.

It fails to recognise that the Local Government Act 2000 has moved local authorities on in terms of accountability. Under the new executive arrangements, people will have greater access to decision makers and to papers. They will know exactly who is taking key decisions in that authority and when they are planning to take them. The public will be given access to papers as soon as they go to the executive—the cabinet—and not merely three days before a meeting as has been the case in the past, although there will still be a minimum of three days between papers being made public and a decision being taken. So there will be a far more open approach to the publication of papers, the nature of the decision to be taken and the person or persons taking that decision.

I believe that to say that a publication scheme for local authorities must include a provision making papers available three days before a meeting is not needed. What will be needed, when we look at the publication scheme for local authorities, will be a scheme which recognises the modern local government world introduced by the Local Government Act. This amendment does not achieve that. On that basis, I ask the noble Lord to withdraw the amendment.

Comments about past and future local government are based on a confusion about the Act. Of course it is the case that cabinets will wish to meet in private from time to time to discuss matters. But there is the expectation that they will meet publicly and take decisions publicly. Many of the complaints about local government in the run-up to the introduction of the latest local government legislation related to complaints about groups—perhaps cliques within groups—making decisions in private and translating them into decisions of the local authority. The new legislation will ensure that the actions and decisions of the local authority are transparently made and taken. But there is a different approach to accountability. Because it rests very much on individual decision taking, in particular with the directly-elected mayor model and where executive councillors have a responsibility, the way in which information is produced, the conditions under which it is produced and the way decisions are made will have to change.

There has been too much of a conspiracy theory attached to the new ways of working in local government. We are trying to put in place a new framework to deal with a new situation. It is not a case of the Government wishing to see local authorities hide away their decisions; far from it. This Government have a proud record of trying to open up the public service; and local government is an important element of that. We want to see those decisions taken publicly and transparently. That has to be in the best interests of democracy and public service.

Lord Lucas

Perhaps I may comment on what the Minister was kind enough to say about my amendment. I accept his stricture that I was thinking wrongly when I suggested that publication schemes should not be exempt documents. In like manner, I hope that he will accept my criticism that he was thinking wrongly when he said that the associated manuals, instructions and guidelines were a matter for the commissioner. They have nothing to do with the commissioner. They are documents created by the public authority to inform its staff how to deal with the publication scheme. They are not of the commissioner or under the control of the commissioner. The commissioner has nothing to do with whether they should be published. That decision rests with the public authority.

It is important that such documents should be available to the public. The public have to know how officials decide whether a document should be published and how to balance the public interest. It is very important that that mechanism is open to public scrutiny for the public to believe that it is fair. A local authority or other public authority that hid such documents from the public would do a great disservice to the general appreciation of the power and effectiveness of the Act.

I hold by the essence of the second part of my amendment, which the Minister did not address. If he does not have an immediate answer, I shall come back to the issue on Report, but I should be grateful for any conversation that we might have before then.

Lord Bassam of Brighton

I am entirely happy with the suggestion that the noble Lord and I might have a further conversation about the issue. I thought that I had answered his point, but I am more than happy to try to dispel any confusion there may be. However, we may be talking at cross purposes. We both need to go away and reflect on that.

Lord Mackay of Ardbrecknish

I listened to the Minister's assurances that our fears are unfounded and that there is no problem with cabinet government in local authorities because they will not take decisions behind closed doors. I am prepared to accept that the Minister thinks that he is entirely correct in all those assurances. But it is odd that so many local newspapers throughout the country, to say nothing of the Association of Liberal Democrat Councillors, do riot share the Minister's happiness and feel that there is something wrong.

One report on the situation in Southend says: The council's eight-person cabinet was forced to open its private meetings to the public after a campaign by the town's paper, The Echo. The Echo's editor, Martin McNeill, wrote to the Local Government minister Hilary Armstrong, urging her to stop councils routinely meeting in closed session". That issue worries me, because we seem not to have joined-up government. Hilary Armstrong replied: The executive will be able to meet in private if it wishes". We all understand that the executive may wish to meet in private on certain issues of commercial confidence or staffing, but Hilary Armstrong's unqualified statement leads me to think that without a campaigning newspaper, Southend's eight-person cabinet would have continued to meet in private., as, I suspect, would some others.

Lord Bassam of Brighton

Which party controls Southend council?

Lord Mackay of Ardbrecknish

I have not got a clue. The Minister seems to think that that is important, but I do not think that it is at all important. No doubt when my noble friend Lady Thatcher passed her Bill, many authorities were controlled by the Conservatives. No doubt both our parties are not always terribly good at local level. Maybe that is true of all three parties. The Liberal Democrats will always accept that they are holier than everybody else, but I will wager that they are not. All three parties do a lot of things in secret. I shall not refer to Glasgow.

Lord McNally

I do not think that the Liberal Democrats have yet been corrupted by controlling Liverpool, Sheffield and Stockport. The Minister admitted that power also corrupted him to a certain extent. When people achieve positions of power, they find openness irksome. I am proud that where the Liberal Democrats have taken power, they have used that power first to open up local authorities. That is to our credit at the moment. However, I agree that this is not a party political point. Any party that is in power behaves better when it is open to scrutiny.

Lord Mackay of Ardbrecknish

I agree entirely. The Government's behaviour over freedom of information illustrates the point. They came to office saying that they would deliver an all-singing, all-dancing Freedom of Information Act. David Clark produced a White Paper setting out some all-singing, all-dancing proposals, but he quickly got the sack and the proposals were watered down to a little bit of singing and a little bit of dancing, but not nearly as much as were Labour's original intentions on winning the election. I understand that. Anyone with power is happy to keep things to themselves. They do not want too much information to be made known. That is why it is important that we scrutinise the Bill.

I hear the Minister's words, but I am not convinced that, as ever more local authorities have cabinet government and mayors, they will not find an excuse to close the avenues of information that are currently available to the press and the public.

The Minister did not seem to find anything wrong with my amendment. His principal argument was that it was unnecessary because all was well and there was no need for a belt and braces provision. I conclude that it would be good to add it to the Bill to underline the importance of freedom of information in local authorities. As I appear to have the support of the noble Lord, Lord McNally, I shall test the opinion of the Committee.

5.57 p.m.

On Question, Whether the said amendment (No. 111) shall be agreed to?

Their Lordships divided: Contents, 77; Not-Contents, 113.

Division No. 2
Addington, L. Elton, L.
Anelay of St Johns, B. Ezra, L.
Astor of Hever, L. Fookes, B.
Attlee, E. Freeman, L.
Barker, B. Gardner of Parkes, B.
Biffen, L. Glentoran, L.
Blatch, B. Goodhart, L.
Buscombe, B. Goschen, V.
Campbell of Alloway, L. Gray of Contin, L.
Campbell of Croy, L. Harris of Greenwich, L.
Clark of Kempston, L. Harris of Peckham, L.
Clement-Jones, L. Haslam, L.
Cope of Berkeley, L. Henley, L. [Teller]
Cox, B. Hooper, B.
Crathorne, L. Howe, E.
Denham, L. Kimball, L.
Dundee, E. Kingsland, L.
Liverpool, E. Rodgers of Quarry Bank, L.
Lucas, L. Roper, L.
Luke, L. Russell, E.
Lyell, L. Seccombe, B. [Teller]
McColl of Dulwich, L. Selkirk of Douglas, L.
Mackay of Ardbrecknish, L. Sharp of Guildford, B.
McNally, L. Sharples, B.
Masham of Ilton, B. Shrewsbury, E.
Skelmersdale, L.
Miller of Chilthorne Domer, B. Soulsby of Swaffham Prior, L.
Murton of Lindisfarne, L. Stewartby, L.
Newby, L. Strathclyde, L.
Noakes, B. Swinfen, L.
Northesk, E. Taylor of Warwick, L.
Norton of Louth, L. Thomas of Walliswood, B.
Onslow, E. Tordoff, L.
Park of Monmouth, B. Trefgarne, L.
Patten, L. Vivian, L.
Rawlings, B. Waddington, L.
Rees, L. Walmsley, B.
Renton, L. Weatherill, L.
Roberts of Conwy, L. Williamson of Horton, L.
Acton, L. Graham of Edmonton, L.
Ahmed, L. Hardy of Wath, L.
Allenby of Megiddo, V. Harris of Haringey, L.
Alli, L. Harrison, L.
Amos, B. Haskel, L.
Andrews, B. Hayman, B.
Archer of Sandwell, L. Hilton of Eggardon, B.
Armstrong of Ilminster, L. Hollis of Heigham, B.
Ashton of Upholland, B. Howells of St. Davids, B.
Bach, L. Howie of Troon, L.
Bassam of Brighton, L. Hoyle, L.
Berkeley, L. Hunt of Chesterton, L.
Bernstein of Craigweil, L. Hunt of Kings Heath, L.
Billingham, B. Irvine of Lairg, L. (Lord Chancellor)
Blackstone, B.
Bragg, L. Jeger, B.
Brennan, L. Jenkins of Putney, L.
Brookman, L. Judd, L.
Brooks of Tremorfa, L. Kennedy of The Shaws, B.
Burlison, L. Layard, L.
Carter, L. [Teller] Lea of Crondall, L.
Christopher, L. Levy, L.
Clarke of Hampstead, L. Lipsey, L.
Clinton-Davis, L. Longford, E.
Cocks of Hartcliffe, L. Macdonald of Tradeston, L
Cohen of Pimlico, B. McIntosh of Haringev, L. [Teller]
Craig of Radley, L.
Crawley, B. MacKenzie of Culkein, L.
Currie of Marylebone, L. Mallalieu, B.
David, B. Massey of Darwen, B.
Davies of Coity, L. Milner of Leeds, L.
Davies of Oldham, L. Morgan, L.
Dean of Thornton-le-Fylde, B. Morris of Manchester, L.
Diamond, L. Nicol, B.
Donoughue, L. Patel, L.
Dormand of Easington, L. Pitkeathley, B.
Dubs, L. Ponsonby of Shulbrede, L.
Eatwell, L. Prys-Davies, L.
Evans of Parkside, L. Randall of St. Budeaux, L.
Evans of Watford, L. Rea, L.
Falconer of Thoroton, L. Rendell of Babergh, B.
Farrington of Ribbleton, B. Renwick of Clifton, L.
Faulkner of Worcester, L. Richard, L.
Gale, B. Sawyer, L.
Gibson of Market Rasen, B. Shepherd, L.
Gilbert, L. Shore of Stepney, L.
Gladwin of Clee, L. Simon, V.
Goldsmith, L. Stoddart of Swindon, L.
Gordon of Strathblane, L. Stone of Blackheath, L.
Gould of Potternewton, B. Strabolgi, L.
Grabiner, L. Taylor of Blackburn, L.
Tomlinson, L. Wedderburn of Charlton, L.
Turner of Camden, B. Whitaker, B.
Whitty, L.
Uddin, B. Williams of Mostyn, L.
Walker of Doncaster, L. Woolmer of Leeds, L.
Warner, L. Young of Dartington, L.
Warwick of Undercliffe, B. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

6.7 p.m.

[Amendments Nos. 112 to 115 not moved.]

Clause 17 agreed to.

Clause 18 [Model publication schemes]:

[Amendments Nos. 116 to 123 not moved.]

Clause 18 agreed to.

Lord Mackay of Ardbrecknish moved Amendment No. 124: After Clause 18, insert the following new clause—


  1. MANUALS 32,241 words, 1 division
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