MANUALS

HL Deb 19 October 2000 vol 617 cc1235-300

.—(1) A public authority to which this section applies shall maintain a list identifying any manuals, instructions, precedents, guidelines or similar materials used by it in connection with the performance of such of its functions as affect, or are likely to affect, the rights, privileges or other benefits, or obligations, penalties or other detriments, to which persons are or may become entitled, eligible, liable or subject.

(2) A public authority to which this section applies shall ensure that the list referred to in subsection (1) and a copy of every item which has been included in the list—

1. (a) is available for inspection by any person at the offices of the public authority;
2. (b) is supplied on request to any person on payment of a fee which may not exceed the marginal cost of making a copy of the item and posting (or otherwise supplying) it to that person; and
3. (c) is available on the Internet.

(3) A public authority is not required by this section to make available any exempt information unless the public interest in disclosure of that information outweighs the public interest in maintaining the exemption.

(4) The public authorities to which this section applies are—

1. (a) any public authority in respect of which an investigation may be made by—
1. (i) the Parliamentary Commissioner for Administration;
2. (ii) the Welsh Administration Ombudsman;
3. (iii) the Assembly Ombudsman for Northern Ireland;
4. (iv) a local authority; and
2. (b) any other public authority which has been notified in writing by the Information Commissioner that it is subject to the provisions of this section.").

The noble Lord said: This amendment would insert into the Bill a new clause relating to manuals. Manuals are referred to in a provision in the current Code of Practice on Access to Government Information, which is sometimes called the "openness code". Yet, although it is a standard feature of overseas freedom of information laws, that provision in the code has not been translated into this Bill.

The openness code requires government departments and other bodies which are subject to the Parliamentary Ombudsman's jurisdiction, to publish or otherwise make available, as soon as practicable after the Code becomes operational, explanatory material on departments' dealings with the public (including such rules, procedures, internal guidance to officials, and similar administrative manuals as will assist better understanding of departmental action in dealing with the public) except where publication could prejudice any matter which should properly be kept confidential under Part II of the Code".

The Government's guidance on the code states: Departments should plan for the progressive release of all the guidelines and other material used in their dealings with the public. This need not mean publication where departments consider that the level of interest would not justify it, or where the guidelines in question are voluminous, but eventually the aim should be to make all guidelines available for purchase or inspection on request". The annual reports under the code have described examples of the type of guidance released under the provision. The reports state: In 1994 the Inland Revenue set a target to publish their 45 main guidance manuals by the end of December 1995. Only 5 volumes failed to meet this deadline and these were published by the beginning of February 1996 … The Health and Safety Executive's rolling programme for preparing existing internal guidance for release was completed on 31 March 1996. All internal guidance which can be released (some 3,500–4,000 documents) is now lodged with HSE's information centres and is available for free public inspection … The Home Office's Immigration Service Enforcement Directorate received 95 requests for internal enforcement policy guidelines in 1996, all of which were met … The Office for Standards in Education provided all nursery education providers with a copy of the Inspection Notebook used by its Inspectors in 1996 … All main Child Support Agency guides and manuals are now publicly available". I am not sure that that last point adds too much weight to my case, given the problems with the Child Support Agency but at least the guides and manuals are publicly available.

The freedom of information White Paper proposed to continue those duties. It stated that, the Act will impose duties upon public authorities to make certain information publicly available, as a matter of course. These requirements … will be broadly along the lines of those in the Code of Practice, namely … explanatory material on dealing with the public".

As with so much on this issue, as I have already mentioned, what the Government set out to achieve in the White Paper written by David Clark and what is actually in this Freedom of Information Bill are at least—I was going to say—miles apart but I had better say that they are a few kilometres apart, otherwise I might find that I am to be prosecuted.

As I said, the Bill omits those important aspects of the code of practice. The provisions on publication schemes could be used to restate that requirement but there is no reference to them in Clauses 17 or 18. The matter would be left entirely to the discretion of the information commissioner. She could decide to require the publication of internal manuals but if she did not, the existing requirement would be lost.

In case I am told that it is not necessary to have this provision on the face of the Bill, I should say to the Committee that the duty to publish guidelines appears in all the English language freedom of information laws, including the Irish, the United States, the Canadian, the Australian, the New Zealand, South African and all the Canadian provincial and Australian state freedom of information laws.

A similar, but not identical, amendment was debated in Committee in another place. That amendment proposed that all public authorities should be required to publish their internal guidelines. The Government opposed it on the grounds that a much wider range of public authorities are subject to the provisions of the Bill than were subject to the code, including smaller bodies with too-limited resources to comply with the requirements.

The present amendment takes account of that objection. It does not apply to all public authorities but primarily to those authorities which are currently subject to the code's existing requirements; that is, bodies subject to the remit of the parliamentary ombudsman and the Northern Ireland ombudsman who are subject to an equivalent duty. It applies also to bodies subject to the Welsh ombudsman.

It adds local authorities to the list. Currently, they are not subject to this requirement. But I believe that their size and the importance of their functions justifies bringing them within its scope. We underlined that point in the last series of amendments. Although the Government won that point, I hope that they will take on board that local authorities should be under the same obligation as those imposed by the code on bodies subject to the remit of the parliamentary ombudsman.

Other authorities will be covered only if the information commissioner notifies them in writing that they must comply. Therefore, this is a much more limited provision than appears in those overseas freedom of information laws where, in those countries, it applies to all authorities which are subject to the legislation.

The Government may argue that this amendment is unnecessary since any individual could obtain any manual by making a specific freedom of information request. However, a disclosure to an individual is not a disclosure to the public at large. Moreover, an individual may not know what kinds of manuals may be held and would not know what to ask for.

Finally, the amendment requires that those are made available in advance of any specific request. That means that if someone requires access—for example, to check whether he has been dealt with fairly—that information will be available at the time he needs it and the person does not have to await the outcome of yet another freedom of information request.

The amendment would ensure that those materials are systematically made public so that everyone knows the basis of decision-making affecting them. Potential deficiencies in those materials, such as arbitrary or unfair procedures or guidance which misrepresented its statutory requirements, would be much more likely to be detected by MPs, advice agencies and other interested parties, and could be corrected.

This is an important amendment. The Government must explain why this was in the Conservative government's code of openness and in their own White Paper but has disappeared from the Bill as we are now considering it. I beg to move.

6.15 p.m.

Lord Bassam of Brighton

I accept the point that the noble Lord made that these are important amendments. As I see it, they are concerned with what should go into the publication scheme. While I appreciate the intentions behind the noble Lord's amendments, we believe that, as set out, they would include a far too wide-ranging and prescriptive model. In any event, they would mean that the publication scheme would have to include, potentially, a vast range of information.

There is a question here of proportionality. If we were to go along the road suggested by the noble Lord, there would be a profound risk of committing certain bodies to extremely large expenditure in order to meet that requirement. That is why we must have a more proportional approach, the approach on which the Government have decided.

Lord Mackay of Ardbrecknish

I am grateful to the noble Lord for giving way so early in his response. Is he saying that the obligations under the code of practice, since it was produced, have been over-the-top, unnecessary, bureaucratic and cumbersome, to use at least two of his favourite words?

Lord Bassam of Brighton

I am not advancing that as an argument. The noble Lord sought to build his model around current practice. I shall come at the end to the point which I believe is most important. That relates to the role of the commissioner.

The effect of the noble Lord's amendment would be to create a situation which may well act completely against the best interests and purposes of the Bill and would undermine the purpose of his amendment.

It may lead to a situation in which there is information overload; where there is so much published material that it is extremely difficult for members of the public to find the information they are seeking. The amendment would introduce a risk of creating an over-burdensome publication scheme. It would be resource intensive, wasteful of resources and it might have the unfortunate effect of making the schemes more difficult for the public to use, not least due to the sheer volume of information to be included.

The commissioner has stated that she sees publication schemes as being vehicles for openness. That is a fair expression of her commitment to a change in culture. The publication schemes can be expected to require in their detail the inclusion of information of the kind referred to, no doubt, in the noble Lord's amendment, particularly where she sees that as serving a useful and purposeful end.

While I understand the intention behind the noble Lord's amendment, it might well give rise to a situation where the public bodies were spending so much of their time, energy and resources in trying to meet the standard that the noble Lord sets out in his amendment that it would be self-defeating and would not lead to the spirit of openness that we all, in this Committee, share as an objective and want to see.

While I understand the spirit behind the amendment, I do not believe that it will have the effect that the noble Lord seeks. I ask him to reflect on that.

It is worth reminding ourselves about the obligations under the code. The big distinction is that they were not statutory. There is no effective enforcement for that part of the current code as it relates to the publication schemes. If such a wide-ranging duty were created into an enforceable statutory obligation, it could lead to information overload, as I have said. That is an important consideration. While the amendment of the noble Lord seeks to restrict the matter to what may be described as larger public bodies—certainly that is the range described in the amendment—at the end it concludes with, any other public authority which has been notified in writing by the Informal ion Commissioner". That gives flexibility. However, a demand could be raised against the commissioner to include in the scheme a vast range of public bodies for which inclusion would be entirely inappropriate.

Perhaps the noble Lord will reflect on those features and consider withdrawing his amendment, although I am sure that he is convinced that it is helpful.

Viscount Goschen

I am struck by the Minister's response to my noble friend's closely argued amendment. It sounded like an old-fashioned argument against a freedom of information Bill: the poor public would not be able to understand all the information being produced.

Lord Bassam of Brighton

Perhaps I can correct the noble Viscount. That is not the kernel of the argument. The point—I believe that he understands it—is that one can put so much information in front of someone that he or she does not understand how to access it. Unless there is an index and a route through all the information, it is meaningless. We need to ensure that that happens and that is why there is an important role for advice, information and support, such things as we have debated before. I will not have the noble Viscount suggest that I say that the poor public will not understand. That is not the basis of the argument at all.

Viscount Goschen

My Lords, we shall have to disagree. I do not believe that saying the public will not be able to find its way through the level of information already established in a voluntary code holds water. It is said that this is not comparable with the code because the code is not statutory. Of course, the code is not statutory, but we are moving on and fulfilling the commitments that the Labour Party made in bringing forward this Bill to give it statutory effect so that we all know where we stand.

There will be a burden on authorities to produce this information, but I believe that my noble friend has come forward with powerful arguments about why this information should be volunteered and put forward by the authorities concerned. Principally, a person coming to the matter afresh may not know what information to look for, but if it is volunteered it will be there for him or her to see, to interpret, to sort through and find the exact information he or she seeks.

Lord Bassam of Brighton

Does the noble Viscount accept the point that I made earlier that, with the code as it is, there is no effective enforcement? Perhaps the noble Viscount could give me some examples of enforcement, because I fail to see them. The big difference in the scheme that we are operating is that there is enforcement behind it, and therefore the public will be empowered.

Viscount Goschen

Presumably the intent of the Bill is to turn large elements of the code into a statutory obligation for authorities. Presumably, in producing a Bill on freedom of information, we are talking about that. If we did not feel that any of that was worthy of having a statutory framework, we would not have a Bill.

Lord McNally

I shall read Hansard tomorrow because I think the Minister has just said that the result will be that the public will be empowered. That is what we intend. One thing that worried me about his speech is that one phrase may recur and that, as Ministers squat in the last ditch, they will defend themselves with "information overload". They will save the poor benighted public from that by resisting this and that amendment because of information overload. That will not do.

As the noble Lord, Lord Mackay, pointed out, most countries that have freedom of information legislation have included such provisions without there being information overload. When David Clark drew up his White Paper, he did not foresee information overload. Without being lured into the lobbies again by the noble Lord, Lord Mackay, I believe that there are merits in his argument that will certainly be worth revisiting on Report and that I believe the Minister should take on board.

Lord Lucas

I entirely agree with the words of the noble Lord, Lord McNally. I would like to see a slightly simpler amendment from our Benches on this subject, but the Government's reply was a piece of "Sir Humphrey-ism" of which they should be totally ashamed. What waffle! Any government department of any size will have all such documents together, organised and indexed for the information of its own civil servants. That is why this paragraph is headed "Manuals".

What kind of government department will keep documents jumbled up in a filing cabinet that will make them so difficult to get at? What kind of government department will not now keep them on its intranet, properly indexed and cross-referenced with all sorts of hyperlinks so that the civil servants can find their way around them easily? Such things will be available to any well-run government department in a way that should be absolute simplicity itself to make available to the public. As the basic manuals are now all published under the code, there will be little extra to do.

The idea that it will cause work for civil servants is ridiculous. They will have to do the work for their own purposes, so it will not be a burden to them. The well-written manual—I am sure that government departments produce well-written manuals—will be a joy for any member of the public to read, should he or she wish to do so. The Minister's argument does not stand up. I hope that he will not repeat it at the next stage, when my noble friend produces a more polished and less "legalised" amendment.

Lord Bassam of Brighton

If the noble Lord produces a more polished amendment, I shall produce a more polished argument.

Lord Mackay of Ardbrecknish

It may be difficult for me to produce a more polished amendment, but it will be fairly easy for the Minister to produce a more polished argument! I have written down that we are now in "FFA"—freedom from argument—mode as far as the Minister is concerned. I am amazed that one of his arguments is that there is no effective enforcement in the code. I read out an extract from the report showing how many of these manuals have been published as a result of the code. Noble Lords who have dealings with the Inland Revenue will marvel at the Inland Revenue producing 45 main guidance manuals, making them available, and publishing them before the beginning of February 1996. Dare I say it: if the Inland Revenue can do it, it cannot be the most impossible task on earth.

If too much is made available for the public, will the Minister, in looking after the interests of the public, be asking the Inland Revenue to withdraw its manuals? I go to the next step: if a manual that has been published under the code is updated or changed, will it drop out of public sight because there is no obligation in the Freedom of Information Bill?

The Minister did not join horns with this at all, but I am puzzled that his ex-colleague's White Paper made it quite clear, as I quoted, that the Act will impose duties upon public authorities to make certain information publicly available as a matter of course. Those requirements will be broadly along the lines of those in the code of practice. What we have heard from the Minister today is that that has been binned, but we have had no explanation of why it has been binned.

As my noble friend Lord Lucas said, the information already exists as guidance to officials and it is a nonsense to suggest that somehow it will be impossible to produce it, and that it will be cumbersome, bureaucratic and the public will not be able to find its way around it. Thanks to this Bill, most of the public will be interested in finding their way through manuals in order to be sure that they are treated properly.

I had thought to read out Section 16 of the Irish Freedom of Information Act because a little while ago the Minister prayed in aid that Act against an amendment of mine, but I shall not. I suggest that the Minister reads Section 16 of Ireland's Freedom of Information Act 1997. I shall only read the first two lines to give the flavour of it. It says, A public body shall cause to be prepared and published and to be made available in accordance with subsection (5) … the rules, procedures, practices … used by the body". If it can be done in Ireland, it can be done in this country; and it can be doubly done in this country when it has already been done under the code of practice.

I listened to the noble Lord, Lord McNally, and noted the arithmetic of the previous Division. I shall therefore take the advice of my noble friend Lord Lucas and take the amendment away, reconsider it and resubmit it when perhaps the joint forces of light on this side of the Chamber are in a better position to defeat the Government. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.30 p.m.

Clause 19 [Information accessible to public by other means]:

[Amendment No. 125 not moved.]

Clause 19 agreed to.

Clause 20 [Information intended for future publication]:

Lord Mackay of Ardbrecknish moved Amendment No. 126: Page 11, line 44, leave out paragraph (a) and insert— ("(a) the information is held by the public authority and the public authority has made an irrevocable public commitment to publish the material and for the scheduled publication date to be within the next three months.").

The noble Lord said: Amendment No. 126 makes it clear that information intended for future publication is exempt information only if, in addition, the authority made a clear commitment to publish that information within three months. In other words, it is not good enough to say, "We are not going to tell you now because we may publish at some time in the future", when "some time" may be some distance away.

The amendment is being extremely generous when it mentions three months because, as Members of the Committee will be aware, in the passage of the Postal Services Bill, my noble friend Lady Miller of Hendon had a real struggle with the noble Lord, Lord Sainsbury, over a report from the Audit Commission. The noble Lord pretended, first, that it did not exist, and then that Ministers had not given any view when it was perfectly clear from the leaked document that the department had given a view. In fact, a Question was asked on that the other day.

It was entirely unsatisfactory that Parliament was being asked to consider a Bill when a report had been prepared about which everybody knew, but which the Government were trying to pretend they were keeping secret because they would publish it at some time in the future. In fact, that report was important to one of the principal issues in the Bill. The Audit Commission report was duly published. It said exactly what my noble friend said it would say. But the Bill had become an Act and therefore nothing could be done to change what was in it.

All that was extremely unsatisfactory. We must tie the Government down so that they cannot use the excuse that they intend to publish at some time in the future to prevent publication at a time when it would be of use to the public or, as was the case in relation to the Audit Commission's report, to Parliament itself. So we are being generous in suggesting three months. It is an important provision to impose on the Government to ensure that they do not use, "We are about to publish", as an excuse for not publishing in time. I am pleased to see that the noble Lords, Lord Goodhart and Lord Lester, have tabled an amendment of a similar nature. I beg to move.

Lord Goodhart

We tabled an amendment in a similar form, with one minor difference; but the principle of Amendment No. 126 seems to us to be absolutely right.

As Clause 20 stands, it would be possible for a government who received an extremely embarrassing report to say, "We intend to publish this report, but need to consider it and discuss further issues it raises. So the time is not right to publish it yet. It will be published "in due course". "In due course" may be after, for instance, a forthcoming general election.

It is wholly inappropriate to give any public authority—the Government or any other public authority; the report could affect local government, for instance—the power to delay open-endedly the publication of important information simply because they say that they intend to publish it at some undesignated future date.

The only difference between Amendments Nos. 126 and 127 is the term "irrevocable … commitment". We felt that it was not practicable to include it. It is difficult to know what "irrevocable" means in this context and what sanctions could be enforced to deal with a commitment that was made in good faith and cannot in fact be complied with. One can imagine various scenarios; for example, a printing strike may make it impossible for a public authority to produce information within the three-month period. It is therefore pointless to include the word "irrevocable". But clearly an authority which gave a commitment to publish within three months and failed to do so without an obvious excuse would find itself in considerable trouble with the media and the public. That would probably be a sufficient sanction.

That is an unimportant difference between the two amendments. We are four-square behind the noble Lord, Lord Mackay of Ardbrecknish, on the principle of Amendment No. 126.

Lord Norton of Louth

I rise to speak to Amendments Nos. 126 and 127. Two problems arise as the provision is presently drafted. One is the open-ended nature of when any publication would take place and the other the fact that there is no commitment to publication at a future time so long as an authority is of the view that it "may" publish at a future date. Both elements need to be constricted.

I see a potential problem with the amendments as tabled in relation to information that may be regularly published; for instance, an annual or six-monthly report. But the principle embodied in the amendments is absolutely sound. We should find some way of ring-fencing it or making it a requirement that there will be some specific time within which publication will occur, so that an authority cannot say, "We are minded to publish at a future date". That needs to be constrained. The amendments are clearly in the right direction and the Government should make some movement in their direction because, as the clause is presently drafted, it is clearly unacceptable.

Lord Bassam of Brighton

The Bill as it stands sensibly makes provision for information which a public authority intends to publish to be exempt from the duty to disclose under Clause 1(1). Unfortunately, the amendment limiting the exemption at Clause 20 would include information relating to projects or reports which it would be inappropriate to publish until after a certain time.

I should like to assist Members of the Committee by providing some examples. First, the Treasury holds information about the performance of different sectors of the economy and information about whether it intends to raise or lower taxes—important information. Such information has an effect on the United Kingdom economy and its release needs to be carefully managed. Secondly, there exist research projects, the findings of which it would be unreasonable, impractical and inappropriate to publish before the project has been completed. Some research projects could easily run for longer than three months, but under this exemption they would have to supply information on request before the project was completed, with the possible effect of nullifying the results of that project.

Clause 20 allows for those different examples and, combined with the proposed arrangements for the adoption of a publication scheme and the enforcement powers of the information commissioner, provides an effective exemption.

The clause as drafted provides an exemption from the duty to provide information where there is a present intention to publish and it is reasonable to withhold the information until publication. The applicant should be told of that intention and would be expected to await formal publication. The requirement of reasonableness, which is a fair test, effectively prevents this exemption being used simply as a device to avoid publishing something which might cause embarrassment to Ministers. In order for this requirement to be satisfied, there must be a clear commitment on the part of the authority to publish the information at some defined point in the future, as well as, by definition, a real reason for the withholding of the information.

Lord Goodhart

The Minister referred to some defined point in the future, but is it not the case that Clause 20 refers to, publication … at some future date (whether determined or not)"?

Lord Bassam of Brighton

I take the noble Lord's point, but there would come a stage where there would have to be a definite date for publication.

The information commissioner will be able to determine whether an authority has acted properly in applying this exemption, including forming her own view on whether the authority intends to publish the information and whether it is reasonable to expect the applicant to wait until then. We should not forget that the public interest test will also apply to information which is exempt by virtue of Clause 20. There can be no doubt, therefore, that the Bill as it stands will guarantee the disclosure of such information.

That is the way in which we see the scheme working. I hope that that explanation will have encouraged Members of the Committee, who undoubtedly have been moved by the right spirit in terms of the culture of the Bill, not to move their amendments.

Lord Goodhart

The examples which the Minister gave referred in particular to economic and fiscal policy in the Treasury. Would not that in any event be covered by the exemption under Clause 27? Is it not the case that anything which would be seriously damaging to the public interest would be covered by a different exemption?

Lord Bassam of Brighton

In many circumstances, yes, it would; nevertheless the example has some real application.

Lord Lucas

The Minister also gave research as an example. He may not be as familiar with the situation as I, but he may remember that it was a major problem in the early days of the BSE epidemic. The Government, particularly MAFF, chose to withhold a great deal of statistical information about the course of the epidemic because it was the subject of their own research and eventual publications, supposedly. The situation was not revealed until the mid-1990s when for the first time the information was given to outside bodies. We then began to see that using the same information it was possible to draw completely different conclusions from those drawn by the MAFF researchers.

That was one of the principal causes of the wrong decisions which the government then made. The information had been withheld by—had been kept within—the MAFF scientists as part of their research project rather than being allowed out into the wider world. The Minister should be very careful about saying that that is a precedent which this Government want to follow.

6.45 p.m.

Lord Bassam of Brighton

I certainly have not said that. Throughout the time of the previous government's problems with BSE, there was in place a toothless code of practice on freedom of information. It did not greatly help the public or the interests to which the public rightly looked to protect them.

I believe that had the current Bill then been an Act the public would have felt a greater measure of protection and would have had at least the confidence that a regime worked to produce the information.

The noble Lord referred to research in general. I ask him whether it would be in the public interest to produce research which was incomplete, not properly formed or formulated? Yesterday I answered a parliamentary Question about the research on cannabis and its possible medicinal uses. I am sure that early parts of the research could be forced into the public domain but should that be the right way of approaching an issue which must be properly science-led? My argument would finally come to the conclusion that it should not be.

We must tread very carefully in these areas. That is why I believe that the scheme we intend to operate, as set out in the legislation, is sensible, practicable and workable.

Lord McNally

The Minister provoked us with yesterday's Question, but is not that a classic example? If the Government sit on research and make their own judgment, perhaps motivated by other politically-led judgments, the general public do not have an opportunity to assess it. I do not see the problem with opening up research findings to public scrutiny, other than that people might make judgments different from those made by the Government.

Lord Bassam of Brighton

It will come as no surprise to the noble Lord to know that I see no problem either, particularly in the case of GW Pharmaceuticals, the case to which I referred. It expects to complete its research in 2002. It is irritating that we must wait for that but, in order for it to be properly formulated so that we can make reasoned judgments and people can join in the debate, that is only right and proper. If we attempt to pick things off in a partially formulated way and perhaps hide behind FOI to do exactly that, the public interest will not be served.

Lord Mackay of Ardbrecknish

The only people hiding behind FOI are the Government. I began to be convinced by a bit of the Minister's argument, but I am afraid that it fell away at the end. Almost daily we read in newspapers information about research which is not fully completed. Work is still being done on the research, but we read bits about it, especially as regards medicine, pharmaceutical products and the like. Claims about "wonderdrugs" for curing cancer spring to mind, and they arise time and again. Journalists, the medical profession, and the public treat them with hope but also with a good deal of scepticism. I am not in the least convinced that if a research project is ongoing some of the preliminary findings must be kept secret until the final report is published. If that final report takes years and years, some of the preliminary information which might be of interest and use will be hidden from the public for years.

I am not in the least convinced, and I noticed that the Minister did not address my complaint about the Audit Commission's report and its impact on our discussions on the Postal Services Bill in July, before the Recess. If the report had officially been made public and the Minister had been forced to own up to it, in Committee and eventually on Report and at Third Reading your Lordships' House might have taken a different view of the amendments tabled by my noble friend Lady Miller. They would certainly have taken a different view of the arguments put forward by the Minister, the noble Lord, Lord Sainsbury.

As regards my amendment, I fully accept—I would be unwise not to—the advice I have received from the noble Lord, Lord Goodhart, that the word "irrevocable" is perhaps not the wisest to use. I fully see that his amendment is better than mine. However, we shall have to return to the issue because the Minister, instead of persuading me that I had no argument, managed to persuade me that there was a great deal in it and that we may need to pursue the matter when we have devised a tighter wording. We can then answer a few of the legitimate concerns raised by the Minister in reply. Frankly, some of the concerns which were, to put it mildly, less than legitimate did not improve his argument in any way. I am not impressed by the thought that government might keep things secret on the basis that at some time in the future they might want to publish the final paper. I do not believe that that is a reason for keeping secret matters that should be made public.

Lord Bassam of Brighton

Perhaps the noble Lord is a little curmudgeonly in his response. He failed to address the issue on which I concluded: the public interest test. Clause 20 does not allow an arbitrary and unchallengeable decision to be taken by an authority. A commissioner can overturn it if reliance on Clause 20 is unreasonable and the public interest test applies. The noble Lord needs to take account of that. These matters can be tested by the commissioner. Therefore, the Bill has real teeth to put these matters under the spot light and give them the kind of scrutiny which the public quite rightly demand.

Lord Mackay of Ardbrecknish

The cavalry has perhaps delivered a slightly better argument than the main force. I am still not sure that I am convinced. We shall obviously take into account the Minister's response when we consider whether to return at Report stage with a better amendment. We may table an amendment more along the lines of that in the name of the noble Lord, Lord Goodhart, or perhaps even one that addresses some of the legitimate concerns put forward by the Minister. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 127 not moved.]

Lord Lucas moved Amendment No. 128: Page 12, line 6, leave out subsection (2).

The noble Lord said: In moving Amendment No. 128 I shall not speak to Clause 26 stand part. That is really a different argument which arises in its proper place in the Bill. Nor shall I address any of the other amendments in this group, unless it is in response to anything that the Government may wish to say, because at this stage I am concerned entirely with the general argument as to how the power neither to confirm nor deny is to be used in the operation of the Bill. It may be that as one comes to understand the position of the Government it will be sensible to speak to the other amendments either now or in their place in the Bill, but that decision is left for the end of the argument.

Perhaps I should rehearse my understanding of how the provisions of Clause 15 of the Bill will work to ensure that I do not proceed on an entirely false premise. The basic arrangement with exempt information is that if the public authority believes that information is exempt it will inform the applicant of that fact, and why it believes the exemption applies. If appropriate, it will then say that it is, however, considering whether it should be released under the public interest test. That may take a little longer to come through, but at the end of the day the member of the public will receive an answer. He will know that the information exists, that the process has been gone through and what stage it has reached. To understand that seems to be a reasonably straightforward affair.

That is not so when one comes to the duty to confirm or deny. According to the wording of Clause 15, it appears that the duty to confirm or deny must be referred to in what the public authority says to the applicant when the duty comes into play. When the public authority believes that that duty does not apply it does not mention anything to do with the duty either to confirm or deny. The duty arises only when a question is asked which raises matters that fall within the ambit of the duty to confirm or deny. To take an example, in another place the Government might be asked whether they had considered the possibility of a particular form of taxation. The Government might not wish to be drawn on the fact that there had been a paper on the subject. They might reasonably wish to say that as a matter of practice they neither confirmed nor denied whether various aspects of taxation had been considered.

However, there is a problem when one considers how that works with the public interest test. If the public authority goes through the process of deciding whether under the provisions of the public interest test the existence of a document should be acknowledged, or that it should be released, there is a duty under Clause 15 to state that fact, but it cannot do so because at this moment it denies its very existence; it cannot say that it is considering whether the public interest test should apply. That arises only if there is a document, and the public authority is not in a position to admit its existence. I believe that there is a potential for confusion in the operation of the provision.

I also have a good deal of concern as to what wording is to be used. The fact that one refuses to tell a member of the public whether a particular document exists may come as an affront. The member of the public may believe that the Government are being secretive. How the decision is expressed is very important. I have not seen the wording in writing anywhere and I should very much like to see it.

One comes to the question of how frequently this provision will be used. The Government have adopted the strategy, as one sees from the immense number of potential amendments in this group, of being able either to confirm or deny in the case of almost every exemption. It is, therefore, possible that all manner of public authorities will use this provision on all kinds of occasions. I take some examples instanced by the Campaign for Freedom of Information. Safety inspectors will not have to reveal when they last inspected a dangerous site; whether they took readings or measurements; whether their visits were announced to owners in advance or made without warning; whether they looked at parts of the premises about which the request is concerned; or whether they were satisfied or dissatisfied with what they found. That is explicitly permitted under Clause 28(3). Ministers would not have to say whether they had received the report of a statutory inquiry, made private submissions to it or intervened in legal proceedings, for example by signing a public interest immunity certificate. That is permitted by Clause 33. In that case there would not be a public interest test.

Given the widespread incidence of this clause in the Bill, at present one has an invitation to be evasive which is not balanced by a duty to assist, which may help to offset such an influence on civil servants. If this provision is widely used potentially it will cause the public to believe that the effects of the Bill are being avoided. It also means that the information commissioner will be overloaded with work. When one receives the reply that something is neither confirmed nor denied, which indicates that the subsection is in use, one must go to the commissioner. If the matter is at all questionable, or one does not immediately understand why it should be subject to the "neither confirm nor deny" rules, one must go to the commissioner to find out if there is even any information. The automatic response of anyone who receives what he believes to be an unjustified response under this heading is to go to the commissioner; he has no other route open to him.

If the provision becomes widely used there is a danger that the commissioner will be completely overloaded and there will be lack of trust in the legislation by those who use it. At present I do not see any provision either in the Bill or the code which prevents authorities from making frequent use of a widespread power in the exemptions in the Bill. I want the Bill to be a workable and successful measure in which the public can have confidence. I believe that the use of the duty either to confirm or deny in inappropriate circumstances will very quickly poison the public's attitude to the Bill. I beg to move.

7 p.m.

Lord Goodhart

My noble friend Lord Lester and I have added our names to this amendment. We go most of the way with the noble Lord, Lord Lucas, on this group of amendments but not all the way. We think there are some circumstances where there should be no requirement to confirm or deny that the information is held. One example is Amendment No. 204, which is an amendment to Clause 36, dealing with health and safety. Clause 36(1) states: Information is exempt information if its disclosure under this Act would, or would be likely to—(a) endanger the physical or mental health of any individual, or b) endanger the safety of any individual". Subsection (2) goes on to state: The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely, to have either of the effects mentioned in subsection (1)". There are certain possible circumstances in which the mere disclosure that information was held would be a potential danger, either to someone who would be seriously upset—mentally perhaps—by the realisation that such information was in the possession of a public authority, or to someone who had supplied the information. The fact that that was known might induce someone to take steps against him. Therefore, we would not necessarily be in favour of a blanket removal of all these "confirm or deny" subsections.

There are a number of subsections where there is a harm test; namely, where it is said that there is no duty to confirm or deny, where the confirming or denying would give rise to the damage which the clause was intended to prevent. There are very few cases in which it is realistic that the refusal to confirm or deny is necessary to prevent the damage which the clause is intended to prevent. But if it is conceivable that there might be some cases, so be it, because it will affect only a tiny minority of cases, if any.

There are a number of amendments in the group where there is no necessity to have a refusal to confirm or deny. Indeed, there is no justification. I refer to Amendment No. 128, which deals with Clause 20. We have already discussed that clause. It deals with holding information with a view to future publication. I cannot see that subsection (2) is remotely necessary because if one is required to disclose that information exists, it is impossible to see that that would imperil the purpose for which Clause 20 is intended.

Amendment No. 137, which relates to Clause 26, is another unjustified amendment. That clause deals with information that would prejudice relations between different administrations in the United Kingdom. However, I think the real argument there is that the whole clause should not exist. Amendment No. 156 relates to Clause 28. Clause 28(3) states: The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1) or (2)". I find it difficult to see that that is an exemption which is justified.

Finally, Amendment No. 176 seeks to delate subsection (2) of Clause 33. Clause 33 is the well-known clause which deals with the advice to government. It is extremely difficult to see why it should be necessary in that clause to have a subsection which provides that there should be no duty to confirm or deny whether such information exists. It is not a question of revealing the content of the information. It is quite unjustifiable to say that there should be no disclosure in such a case even that the information exists.

Therefore, while we do not agree with the noble Lord, Lord Lucas, on all his amendments, we agree with him on a significant number of them.

Lord Mackay of Ardbrecknish

I think I shall satisfy myself by going along in the wake of my noble friend Lord Lucas and the noble Lord, Lord Goodhart, on this issue. Both noble Lords have posed some fairly difficult questions to the Minister. In certain cases of security and the like I understand why confirming or denying might be information enough for whoever was looking for it.

I can also understand—as my noble friend pointed out—that in the run-up to a Budget people might jump to conclusions if the Treasury were forced to confirm that it had a paper on some kind of tax. Even if the paper concluded that there was no way on earth one should be paying that tax, people would spring to the conclusion that the Government were about to introduce it. So I can understand that. But, as the noble Lord, Lord Goodhart, illustrated, there are some parts of the Bill where the justification looks pretty thin. Perhaps thinnest of all is Clause 20 which deals with information which may be about to be published. If you are not going to confirm or deny its existence, it is quite hard to prove that it is about to be published. I think that the Government should look seriously at the blanket they seem to be imposing on various aspects of the Bill when they say they will neither confirm nor deny information.

Lord Norton of Louth

Perhaps the Minister would indicate how we are to proceed following the comments of the noble Lord, Lord Lucas. Given all that is encompassed in this grouping, there is the danger of the debate becoming misshapen. I thought I would raise that point before the Minister responds. The debate on Clause 26 stand part is probably best taken in the normal order rather than the Minister responding to that now.

Lord Falconer of Thoroton

I understand the concern and agree with it. The noble Lord, Lord Lucas, said that Clause 26 stand part should be dealt with entirely separately. We agree. It raises completely different issues.

Perhaps I may deal with the points which have been raised. I think that Members of the Committee understand what the purpose of the "confirm or deny" provision is. The essential obligation created by Clause 1 is that where an applicant asks for information, the public authority first of all is obliged to tell him whether or not the information exists and if it does to communicate that information to him.

The public authority is not obliged to communicate the information if it falls in any one of the exemptions. Each one of the exemptions has its own justification. We shall discuss that justification when we come to each one of them. But they are there. The exception to the duty to confirm or deny in every case is a logical adjunct of the existence of the exemption.

The clearest and easiest example is endangering the defence of the realm. You do not have to communicate information which endangers the defence of the realm. Nor do you have to confirm or deny whether such information exists when, if you did confirm or deny its existence, that in itself would endanger the defence of the realm. I give the obvious example. "Do you have detailed information concerning the chemical warfare capacities of the following countries?"; and then a list of countries is given. It could well damage the defence of the realm if one indicated the extent to which one had that information.

That is the structure of the Bill. Whatever one thinks of the individual exemptions, it is a plainly sensible structure. In each case one can debate the merits of the exemptions, but that is the way it is cast. The noble Lord, Lord Lucas, had already alerted me to the fact that he was concerned about how this would operate in practice. That was the burden of his speech to the Committee. He was concerned, first, about how often it would be used, and, secondly, about the extent to which it would cause difficulties in relation to applicants applying for information. The structure of the Bill is such that an individual public authority is obliged under Clause 15 to state, if it is relying on any exemption, that it is relying on that exemption and why the exemption applies. Equally, it must say whether it is relying on the confirm or deny exception in relation to that exemption. So there will be no doubt in the mind of the applicant whether the position is that he is being told that it is an exempt document or he is being told that it is a case where the public authority does not have to tell him whether the document exists. In each case the applicant has to he told why that is the position.

In respect of those exemptions where what was Clause 13 applies—public interest balancing—in the same notice or in a subsequent notice, the public authority has also to say that it has exercised that discretion. If the discretion falls down in favour of disclosure, it has to explain that. If it says that the balance comes down not in favour of disclosure, it has to say why. Likewise, where exercising that discretion in relation to the question, "Should it confirm or deny that the document exists?", it has to explain why the public interest in not answering the question outweighs the public interest in answering the question. There is a clear obligation on the face of the Bill for the public authority to indicate whether an exemption applies or whether it is the exception; namely, the public authority does not have to say whether the document exists. In relation to what was Clause 13, it has also to explain, if it does not intend to override the exemption, why it does not intend to override the exemption. If it is a case where it has decided not to say whether the duty to confirm or deny arises, it has to explain why it does not intend to override the exemption in relation to the obligation to say whether the document exists.

So there will never be confusion. I cannot give the Committee the exact words because there is no prescription in relation to the exact words. But there is a duty to go through all those stages clearly. There is no need for the information commissioner to come in at any stage if the answer is favourable. The applicant can make up his own mind on the basis of the reasons given when he sees the reasons given. If he is not satisfied with any of the answers given, he can apply to the information commissioner.

Lord Lucas

I am grateful to the noble and learned Lord for giving way. The difficulty arises under Clause 15(2). Let us suppose that we have an exemption which is not an absolute exemption. The first reply of the public authority is, "We have no duty to confirm or deny whether there is any such information". But then, under Clause 15(2), it goes on to say, "But we are considering whether to release the information under the public interest clauses". If it says, "We are considering whether to release it under public interest clauses", it is saying that the information exists. It cannot say, "But we are continuing to look at the public interest side", if there is no information. By saying that it is continuing to look at the public interest, it is admitting that the information exists.

Lord Falconer of Thoroton

The public authority says in relation to stage one, "I am entitled not to answer the question about whether or not the information exists". Either it then says, "Under Clause 13 I am not going to depart from that for the same reasons", or it says it in a different notice.

Lord Lucas

Clause 15(2) is worded: Where, at the time when the notice under subsection(1) is given". At the moment the public authority gives the notice that says that it neither confirms nor denies, it has to say whether it is continuing to consider the matter under the public interest terms. But it cannot possibly be considering the matter under the public interest terms unless there is something to consider. Therefore it is saying that the information exists. There is a problem here. If there is no information, there can be no public interest question. But if there is information, there can be a public interest question. So if the public authority answers that there is a public interest question still to be resolved, it is admitting that there is information.

7.15 p.m.

Lord Falconer of Thoroton

I simply do not understand that. Let us suppose that the question is, "Can you please provide all information you have on the chemical warfare capacity of country X?" Let us suppose that there is no information in relation to that. Let us suppose that, because there is no information, that in itself is damaging to the defence of the realm. I say at stage one, "I am not obliged to say whether I have that information", as it is clear that it would damage the defence of the realm. Then, at the Clause 13 stage, I have to decide whether, although it might damage the defence of the realm, the damage is sufficiently insignificant to allow me to answer the question. The fact that I say that I am going on to consider the question under Clause 13 but I have not yet come to an answer does not indicate whether there is any information. So I simply do not understand the noble Lord's example. The fact that there can be a pause between the two—other interests might need to be consulted before one could decide whether Clause 13 applied—is a perfectly legitimate way to proceed. Although, with the greatest respect to the noble Lord, what he said sounded neat, if one thinks it through, there are circumstances where the pause is both sensible and worth while.

Lord Mackay of Ardbrecknish

I have been listening to this exchange with interest. If the information was published in a newspaper, does the noble and learned Lord think that the public would draw the conclusion which he rightly and understandably invited us to draw? Having no information may be something we do not want to divulge either. I have a suspicion that the net result of the two questions will be that the public will come to the conclusion that there is information and the Government want to hide it.

Lord Falconer of Thoroton

What we are trying to address here is the policy. In the example I have given I do not think that the Committee would have much difficulty in understanding our approach. The fact that in certain circumstances the public draw certain conclusions may be unfortunate in some cases. But it may be necessary—for example, in relation to the defence of the realm—to deal with the question in that way. From time to time one may have to put up with misunderstandings. I hope that that is not the position.

I concede that this power could be used in both circumstances; first, when there is no information—I have just given an example—and, secondly, where one is trying to protect an informer and the question is, "Can you please provide all information you have by way of communications from X concerning Y?", X being allegedly an informer. In that case people, whose motives for making applications we cannot examine, are seeking to discover whether X is an informer. That is a good example of where one would want to say, "We neither confirm nor deny whether we have any such information" and, it is to be hoped, people would draw no inferences from that.

What we are trying to do is to think through the policy and come to the right conclusions. That is the basis of the confirm or deny approach. I have set out the process that has to be gone through. I cannot give the exact words that will be used in every case. But the fact that on the face of the Bill there is an obligation to go through all those stages ensures that there will be clarity.

In relation to the specific points that were raised in our debate, Clause 20 concerns circumstances where there is no obligation to disclose under the freedom of information legislation because disclosure will be made at a future date. Various detailed points have been raised on that, but what the Bill states here is that, The duty to confirm or deny does not arise if, or to the extent that, compliance with section (1)(1)(a)"— namely, the duty to confirm or deny— would involve the disclosure of any information which falls within subsection (1)". The body should not be bounced into giving information early by being asked a variety of questions concerning whether certain kinds of information in fact exist.

If one accepts the principle of such an exception as outlined in Clause 20—albeit that noble Lords have thought of ways in which to improve it—then Clause 22 follows logically from there.

So far as concerns the courts, Clause 29 aims to prevent parties to criminal proceedings attempting to secure information which would not be available to the court process. Whether such information exists might he relevant in certain circumstances.

As regards the balance of the clauses, at each stage it is necessary to identify the purpose of the exemption. If the exemption survives, then it is necessary to put in place the supplementary power.

I hope that I have made clear the basic argument. Should any noble Lord wish to return to an individual example, perhaps the right course would be for me to respond to any specific points made.

Lord Lucas

I thank the noble and learned Lord for that answer. I should like to raise two points. First, the noble and learned Lord has advanced the interesting argument that the lack of any information is in itself information. In principle, I agree with that. I can see how, in the example put forward by the noble and learned Lord; namely, in Clause 24, the fact that there is no such report is information and of itself information which might be likely to prejudice matters mentioned in subsection (1).

However, I have more difficulty with that construction when we come to Clause 28. The duty to confirm or deny is phrased differently here. The duty does not arise in relation to information which is exempt information or, if it were held by a public authority, would be exempt information by virtue of the subsection. The absence of information is less obviously "information" in the context of that subsection. However, I shall not tax the noble and learned Lord further on that point. Suffice it to say that I hope that he will run it by his legal eagles to ensure that the wording of the subsection will stand up.

Perhaps I may return to the main question here; namely, how often will exemption be used and what will be the real controls on it? Obviously, occasions will arise when it ought to be used but, equally obviously, such occasions should be pretty infrequent. If a public authority takes to using this exemption clause frequently, what mechanism is in place to stop it from doing so?

Lord Falconer of Thoroton

I shall address first the court example cited by the noble Lord. If the provisions were not in place, where an investigation was being conducted, the defence would be able to find out precisely all the lines of inquiry that have or have not been followed by an investigating authority. That should be a matter for the court to decide, rather than any provisions under the Freedom of Information Bill.

On the point of how often exemption will be used, of course I am not presently in a position to say. It will depend on the nature and number of applications that are made. What is more important is that it is essential to ensure that a sensible approach is adopted here. To that end, I believe that the approach adopted by the Government in the Bill in relation to applications is sensible.

Lord Lucas

I am grateful to the noble and learned Lord. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 agreed to.

Clause 21 [Information supplied by, or relating to, bodies dealing with security matters]:

Lord Goodhart moved Amendment No. 129: Page 12, line 12, at end insert (", and its disclosure would prejudice the functions of any of those bodies").

The noble Lord said: The intention behind this amendment is to apply a harm or prejudice test to Clause 21, which deals with information supplied by or relating to bodies involved in matters of security. Of course it is inevitable that services of this kind will be given some degree of exemption from freedom of information. However, unlike the proposals contained in the UK Bill, the security and intelligence services in the USA, Canada and New Zealand are not entitled to absolute exemption and are subject to the laws governing freedom of information.

The exemption in this case applies regardless of whether disclosure would harm national security or the work of the specified bodies. Furthermore, it applies automatically merely because information has passed through the hands of those bodies. In fact, nowadays the various security services are, to an increasing extent, taking on work that would in the past have been the responsibility of the ordinary police services. For example, the security services have been involved in security audits of departments such as the Department of Social Security, as well as in conducting investigations into large-scale benefits fraud.

The National Criminal Intelligence Service deals with football hooliganism, among other things. I appreciate that certain information concerning football hooliganism might be such that it is in the public interest that it should not be disclosed. Football hooligans might then devise ways of getting round the restrictions imposed by the recent Act. However, it seems unlikely in the extreme that there is no information relating to football hooliganism which could not be disclosed without harm to the public. In those circumstances, it would seem right and proper that the exemption provided by Clause 21 should not be a simple blanket exemption, but that some form of harm test should be applied. I beg to move.

Lord Lucas

I have tabled two short amendments in this grouping which I believe are self explanatory. Amendment No. 130 picks up on the Scott affair. The noble and learned Lord will recall that the difficulties in which Ministers found themselves arose because they thought that they were obliged to sign ministerial certificates. I hope that I have made it clear that these are certificates to which that rubric should not apply.

Amendment No. 132 suggests that such certificates ought always to be matters of public record and should not in themselves be secret. I shall be interested to hear what the Minister has to say on that.

Lord Brennan

I should like to raise a question which springs both from the amendments and from this, the first of 20 exemptions, that we are about to consider.

I wish to raise the matter of the relationship between this Bill and the administration of justice, both criminal and civil. I invite the Minister—either at this stage or on Report if that is thought to be more appropriate—to confirm and clarify that nothing in the Bill could affect the existing powers of a court, whether criminal or civil, to require the production or disclosure of documents or material relevant to the conduct of a defence or a prosecution.

Perhaps I may cite two examples. First, in the Matrix Churchill case, it was coincidental that a line of inquiry started into certain documents was the one that, in all likelihood, eventually led to the acquittal of the defendants. In that trial, the judge overrode ministerial certificates. Secondly, in the civil arena, in the HIV haemophiliac claims, children contracted HIV after being given, within our National Health Service, blood plasma tainted with the virus. Before it came to trial, that claim led to an application from the health ministry to disclose the material relevant to the circumstances in which it had decided to choose, and then to continue using, the affected plasma. The Court of Appeal in that case—one member of which was the present senior Law Lord, the noble and learned Lord, Lord Bingham—robustly rejected the idea that there could be any significant public interest affecting matters of health in a case like that such as would justify non-disclosure.

Those two examples illustrate, I hope, the need, not only during proceedings—where a judge may make an order before trial or at trial—but prior to proceedings, for those affected to find out relevant information in the interests of justice in conducting a case.

The present clause, the one following it and others, include the use of a ministerial certificate. I therefore invite the Minister to avoid any confusion among the lawyers who might have to deal with this. This Bill does not affect the administration of justice as I have analysed it.

7.30 p.m.

Lord Lester of Herne Hill

The noble Lord, Lord Brennan, has raised an important issue. Perhaps in his reply the Minister will consider whether on Report we should include language similar to that in the Defamation Act, which makes it clear that nothing in that Act is intended to affect the common law. That has been a beneficial provision because it has enabled the courts to carry on their function of declaring the common law without being inhibited by anything in the statute.

I remember in the Spycatcher case, where I appeared for the newspaper, an attempt by the then Attorney-General to use the Official Secrets Act to cut down the law of confidence. He failed. I think in the Crossman diaries case a similar attempt was made—or floated anyway. I can see that the noble and learned Lord, Lord Archer of Sandwell, is not sure whether I am right about that.

Lord Archer of Sandwell

I am grateful to the noble Lord. I intervene only to say that I am relying on a very defective memory.

Lord Lester of Herne Hill

My memory is terribly bad. I am making the same point as the noble Lord, Lord Brennan. It is important that nothing in what is meant to be a freedom of information Act should curtail the powers of the courts as regard open justice and the disclosure of information under their own jurisdictions, criminal and civil. If necessary—unless we are clear about it—the Bill should say so.

Lord Falconer of Thoroton

There are four points here. First, as regards the amendment of the noble Lord, Lord Goodhart, he suggests making the absolute exemption subject to a harm test or a prejudice test in relation to the security services. We disagree with that as a matter of principle. To include such a test would give the impression that information of this kind could be disclosable. In reality, it is very unlikely that information relating to the work of those services could be disclosed without causing harm or seriously damaging the work they do or their purpose. The Government believe that it is more honest to give an absolute exemption. That is our present view in relation to that policy.

The noble Lord, Lord Lucas, raised the question of whether the Minister is obliged to sign the certificate. He is not obliged to sign the certificate. It is a matter for the Minister.

The noble Lord, Lord Lucas, then raised the question of whether the exemption certificate could ever conceivably be itself exempt under any such exemption. I cannot conceive that that would be the case. The purpose of the evidential certificate proving the exemption is that it is intended to be produced in public to the information commissioner or to the appropriate authority. I cannot conceive that it could be exempt because it is intended to be made, in effect, public.

The fourth point was raised by the noble Lord, Lord Brennan, and supported by the noble Lord, Lord Lester. The circumstances in which the court will, in effect, override an assertion of public interest immunity are entirely matters for the courts. It is a regime entirely separate from the Freedom of Information Bill. The tests applied by the courts will be broadly different because they will be balancing the interests of a fair trial against whatever reasons are advanced for not producing the documents.

Moreover, the question about fair trial and production in the context of court proceedings is an issue between two parties, one of whom may be a state party—for example, because it is the prosecuting authority—but that issue is entirely separate from those raised by the Freedom of Information Bill.

The noble Lord, Lord Lester, suggested that we should put that on the face of the Bill. With respect, I do not think that that is either necessary or appropriate. The clarity with which the two are divided is sufficient without any need to amend the Bill. In the light of my remarks, I hope that the noble Lord will feel minded to withdraw his amendment.

Lord Goodhart

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 130 not moved.]

Clause 21 agreed to.

Clause 22 [National security]:

[Amendment No. 131 not moved.]

Clause 22 agreed to.

Clause 23 [Certificates under ss. 21 and 22: supplementary provisions]:

[Amendment No. 132 not moved.]

Clause 23 agreed to.

Clause 24 [Defence]:

[Amendment No. 133 not moved.]

Clause 24 agreed to.

Clause 25 [International relations]:

Lord Mackay of Ardbrecknish moved Amendment No. 134: Page 13, line 34, after ("to,") insert ("substantially").

The noble Lord said: On page 13, line 34, of the Bill, Clause 25 states: Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice— (a) relations between the United Kingdom and any other State"— and so on. The amendment seeks to insert the word "substantially". The clause would then read, would, or would be likely to, substantially prejudice".

The Committee seems to be full of lawyers at the moment, including the noble and learned Lord, Lord Falconer. I am reticent to wax too eloquent on this particular issue because I have no doubt that it will bring some interesting legal arguments with it.

Proposals for a freedom of information Bill were discussed by the Scottish Executive. In relation to a harm test, paragraph 4.11 of its consultation document states: We propose that the harm test be demanding and that it be whether disclosure would, or would be likely to, substantially prejudice the matter set out in the exemption in question. Our use of 'substantial prejudice' is intended to make clear that information covered by a content-based exemption should be disclosed unless the prejudice caused by disclosure would be real, actual and of significant substance".

To the layman, therefore, there must be some difference between simple "prejudice" and "substantial prejudice".

The document continues: The use of the term 'substantial prejudice' may of course not suit every circumstance and the wording of individual exemptions may need to be tailored to the specific subject matter at hand". Perhaps that is what the Minister will argue. But, reading the exemptions, it seems to me that if "substantial prejudice" is a more severe test than "prejudice", it should be applied in this case.

If it will bring the Liberal Democrat Benches to my side on this issue, dare I say that the signatory to this document is the Deputy First Minister—currently, I am afraid, acting as First Minister because of the circumstances—and Minister for Justice, Mr Wallace, who belongs to the Liberal Democrat Party? With that explanation, I beg to move.

Lord Brennan

I intervene not to support the amendment, but to invite the Minister, in responding, to clarify for my benefit, if I have not properly understood the Bill, the relationship between Members of this House and the other place when they request information compared with the ordinary citizen who requests information. That may occur by parliamentary Question, but it can often be done by correspondence. The Scott inquiry can be cited as an example to test how this clause will work.

Members of the Committee will remember that material was kept from the House by Ministers, particularly in response to parliamentary Questions. Lord Justice Scott described their Answers as "inaccurate", "inadequate" and "misleading". He went on to state in his report: The answers … failed to inform Parliament of the current state of government policy on non-lethal arms sales to Iraq. This failure was deliberate and was an inevitable result of the agreement between the three junior Ministers that no publicity would be given to the decision to adopt a more liberal, or relaxed, policy". Lord Justice Scott said that he had, come to the conclusion that the overriding and determinative reason was a fear of strong public opposition to the loosening of the restrictions on the supply of defence equipment to Iraq and a consequential fear that the pressure of the opposition might be detrimental to British trading interests". That is a material example. I am grateful to the Campaign for Freedom of Information for pointing out to me that there are no fewer than six different ways in which the government at the time could have used this Bill to protect their position. My question to the Minister—one of several examples of which I have given him notice—is this. Using this example in relation to this particular clause, is he able to reassure the Committee—I am sure he can—that the circumstances of the Scott inquiry would not recur through a government being able to use the provisions of this Bill to protect their internal position?

Lord Bach

I beg to move that consideration of Amendment No. 134 be adjourned.

Moved accordingly, and, on Question, Motion agreed to.

Lord Bach

With gratitude to all sides of the Committee, I suggest that the proceedings be resumed at 8.30 p.m.

[The Sitting was suspended from 7.43 to 8.30 p.m.]

Lord Lester of Herne Hill

In speaking in support of Amendment No. 134, I wish to address Amendments Nos. 139 and 159 standing in the name of the noble Lord, Lord Mackay of Ardbrecknish, and also Amendments Nos. 216 and 361 standing in my name and that of my noble friend Lord Goodhart. If I make a single speech, that will dispense with the need to make others later.

I say at the outset that we on these Benches regard this as one of the two really important issues that will arise in the remainder of the debate this evening, and perhaps in the remainder of the debates in Committee altogether. I shall argue that for reasons of legal certainty and "changing the culture", to use the Government's helpful expression; helping the individual citizen to enjoy his or her right of public access; and giving sufficient weight to the right that is enshrined in this Bill, one should make clear in these amendments the nature of the harm that needs to be balanced against the basic right of access to information about the workings of government and public authorities.

I remind the Committee of the way that this pattern of amendments covers the matter. The amendment to which the noble Lord, Lord Mackay, has spoken deals with international relations and argues that there should be a substantial prejudice test in relation to that exemption. Amendment No. 139 deals with the economy and again argues that there should be a substantial prejudice test. Amendment No. 159 deals with law enforcement and again argues for a substantial prejudice test.

Amendment No. 216, which stands in my name and that of my noble friend Lord Goodhart, concerns commercial interests and again argues for a substantial prejudice test. Amendment No. 361 would define prejudice throughout the Bill as prejudice which is real, actual and of significant substance. As it stands the prejudice test used in the Bill is weaker than the substantial harm test that was proposed in the Government's 1997 White Paper, at paragraph 3.7. As the noble Lord, Lord Mackay, indicated, it is also weaker than the substantial prejudice test used in the Scottish Executive's proposals. The proposal of the noble Lord, Lord Mackay, reflects the key principle that restrictions on public access should be imposed only if they are necessary and proportionate. That is the definition proposed in the Scottish Executive's consultation paper, at paragraph 4.11, and, as I say, in the White Paper, Your Right to Know. In determining whether the Bill ends unnecessary secrecy in government, three competing interests have to be kept in mind: the public interest in the full and fair disclosure of information; the individual's privacy interest as regards personal information; and the Government's interest in non-disclosure to protect the integrity of their operations in governing on behalf of the people they were elected to serve or other public authorities. Those three interests and the need for a careful balance between them were recognised by the Home Secretary in his statement on freedom of information in the other place.

The Government, in my view, achieved the right balance of interests in their White Paper. The logic of the White Paper was that it contained few blanket exemptions and instead proposed a broadly applicable test of substantial harm to be used across the board and in a way that would take into account special factors in particular areas covered by some exemptions. The process is akin to that found in European Community law, European Convention law and domestic constitutional law where a general principle has to be applied to a specific factual context. It is also the approach used under the Data Protection Act, as confirmed by the noble and learned Lord, Lord Williams of Mostyn, in a Written Answer to me of 8th April 1998 where he made clear, According to the consistent case law of the European Court of Justice, in the application of Community law the guiding principles, which include proportionality and legal certainty, must be observed by the courts".—[Official Report, 8/4/98; col. W A 129.] Of course that is not what the Data Protection Act said, which is why I probed in the Question and received a clear and useful Answer. It is also the test used under the EC data protection directive. It is therefore incorrect for the Government to suggest—as they did in their consultation document, at paragraph 32—that a substantial harm test would be inconsistent with the directive because the directive expressly recognises the need to balance by way of a necessity test the right to receive and impart information with other fundamental rights.

We take issue with the Government's revised view that a single omnibus substantial harm test cannot work properly for the range of separate exemptions proposed because that is precisely what occurs here, in Europe and across the Commonwealth in determining a fair balance between the right to free expression, including the right to receive and impart information, and competing interests and rights. The substantial harm test was the equivalent of the well-known European principle of necessity and proportionality which has been applied by the courts in a body of European, Commonwealth and British case law.

In the interests of legal certainty we submit that the Government should write their intentions into the Bill rather than leaving it to the courts to reinterpret a vague test. In that way civil servants, public authorities, the ordinary public, the information commissioner and everyone else will know what the standard is. An adjective, whether it is "substantial", "significant" or "serious", needs to be placed before the word "prejudice" to ensure that disclosure is prevented only as the Government have said that they really intend. Without an adjective of that kind, the prejudice test is simply a harm test in another guise and gives no guidance either to the information commissioner or to public authorities on how to address the interests at stake in an information request.

Furthermore, the choice of a bare prejudice test does not sit well with other UK legislation in the information field. It does not sit well with the test that was put into the Contempt of Court Act in 1981 to give effect to the judgment of the European Court of Human Rights in the thalidomide case. It does not sit well with the Official Secrets Act 1989 which replaced the catch-all approach with specific harm tests. In other words, it is out of line both with European law and with our own statutory and common law approach.

I move from that general statement to the way in which, step by step, the Bill is now expected to work and to show why this is important. The first step—as I understand the Bill—is that there is a general right of access to information held by public authorities. The second step is that under Part II some information may be exempt. In some cases, in order that the exemption will apply, the information holder has to consider whether the disclosure of the information will cause prejudice to the grounds for exemption, such as defence, international relations or the economy. The third step is that if the information holder decides that disclosure is likely to cause prejudice, the authority may withhold the information unless the public interest override applies. It is only once the information is exempt that the public interest override will apply. The fourth step is to answer the question: is disclosure in the public interest? The fifth step is this: if disclosure is in the public interest, does it outweigh the public interest in maintaining disclosure?

I hope that I have those steps correct. There are a great number of reasons why a substantial harm test is necessary rather than this very open balancing test. First, civil servants and those working for bodies covered by the Bill, faced by the FoI request, will have first to consider whether any of the exceptions apply in principle. That means that in the majority of cases the first test to be examined will be prejudice. The word "prejudice" is very wide and could be given a number of meanings according to context and the intention of the information holder. It could mean any prejudice at all. If there is no prejudice, there is no need to consider whether disclosure is in the public interest. The public interest test is an override which kicks in only once prejudice has been established.

The intention of the Government—it is entirely praiseworthy—is to initiate a culture change in the way in which government is conducted. The culture change has to start at the grass-roots level. If the first test faced by a civil servant is that of prejudice—a complex test—it is possible that he or she will err on the side of caution; and that will not promote greater openness. If the civil servant then has to consider the public interest—an even more complex test—that can give even greater scope for confusion. All the while, the requester will be awaiting a clear and quick response in order that the information may be used.

These amendments, requiring that the prejudice means prejudice that is real, actual and of significant substance—or substantial, to take the word used by the noble Lord, Lord Mackay—are useful because they clarify for the information holder that, in considering whether an exemption applies, openness should be the starting point, and exceptions imposed only when truly necessary. They provide greater guidance to those applying the test; and in making the test clearer in its intention, it will not only increase the likelihood that the move away from closed government will be successful, it will also give the public making the request greater certainty.

It was for those kinds of reasons, but not mill h such verbosity, that the two Select Committees took this approach. It is quite important; otherwise there will be great complexity and an unnecessarily obscure approach at the initial stage. It is much better that the decision taker understands that prejudice means something more than any prejudice. It means something real and significant, real and substantial. If the Minister replies, "Of course that is what it means", then that is what it should say.

8.45 p.m.

Lord Falconer of Thoroton

The amendment, in effect, adds the word "substantially" with regard to the vast number of exemptions which depend on a prejudice test to make them kick in. As the noble Lord, Lord Lester, said, it also contains a definition of what is meant by "prejudice".

At the heart of the submissions of the noble Lord, Lord Lester, supported by the noble Lord, Lord Mackay, is this proposition: that "substantial harm" is easier to understand and apply than "prejudice", which is one of the vital steps before one reaches a conclusion on whether to disclose. Although the arguments were set out extremely well, perhaps I may explain why I think that there is a slight misunderstanding on the part of those who believe that that would be the right approach.

The way that the Bill works in relation to the exemptions which the amendments affect is that, first, the public authority has to determine whether or not disclosure would prejudice, for example, relations between the United Kingdom and any other state. The public authority asks itself the simple question, "If I disclose this document which indicates the greatest disdain being held for certain aspects of another country's activities, will that cause harm to my relations with that state?" That is a very simple question for a public authority to ask. The answer will be either "yes" or "no". If that were the end of the process, I could quite understand an argument which said, "You have to set the test at some level". But that is not the end in any of the exemptions which these amendments affect because the balancing act then has to go on between the public interest in disclosure and the public interest in maintaining the exemption. So, in the example given, does the harm to our relations with state X outweigh the public interest in the public knowing at that time what was going on in that country?

If you add in some qualifying adjective, you end up in the position where, in this example, you can do harm to international relations between the United Kingdom and the other state. There is no countervailing balance in relation to public disclosure when one examines the matter under Clause 13; and yet one discloses the information. One ends up with a situation where one has prejudiced one's relations with the other state when there is no reason to disclose the information.

That is the consequence of the arguments advanced by the noble Lord. I think that that is a wrong conclusion. The error that the noble Lord makes is that he forgets that you are determining the prejudice and then working out how it compares against the public interest in disclosure. It is not just a free-standing test; it has to be compared with something else.

I give three other reasons why I believe that the noble Lord is wrong. Secondly, I do not think that there would be any difficulty in employees of public authorities—civil servants, or employees of local government—understanding what is meant by "prejudice". Thirdly, the word "prejudice" without gloss is used in both the Local Government Act and the Data Protection Act. As far as we know, its application there has caused no difficulty. Fourthly, if you take a phrase or term in this Bill different from, in particular, the Data Protection Act, you will be saying in effect that there is some different test from that which applied in those Acts. That would be wrong.

For all those reasons, we believe that the right word is "prejudice". It is wrong to gloss it with the word "substantial". The word "prejudice" does not give rise to any problems in relation to its understanding. Indeed, if you did gloss it you would end up in the anomalous situation of sometimes having to disclose things even though they might prejudice international relations, the economy or the defence of the realm when there was no countervailing balance.

For those reasons, I am not persuaded by the arguments advanced by the noble Lord, Lord Mackay, or the noble Lord, Lord Lester.

Lord Lester of Herne Hill

Before the Minister sits down, perhaps he could answer these questions which follow from his argument.

First, does he agree with me that if you simply put in the word "prejudice", which would cover any prejudice however trivial or insignificant, it follows automatically that the decision-taker at that first stage will almost certainly find in almost every case that there is some prejudice, however trivial? If that is right, it hardly ensures a culture of openness. If prejudice can be trivial rather than substantial, the Act invites the decision-taker to be negative at the first stage and move the balance.

Lord Falconer of Thoroton

"Prejudice" is an ordinary English word, defined against the Act and to be judged ultimately by the information commissioner. The application of the word will be precisely determined over time by an interaction between the public authorities and the information commissioner's views on their approach.

As I said to the noble Lord, Lord Lucas, on an earlier amendment, each public authority must define why it thinks that an exemption applies. Individual applicants will be able to see the whole process, as the public authority goes through whether the exemption applies and, if so, whether the information should be released under Clause 13. With respect to the noble Lord, he is wrong to suggest that the instinct will immediately be to latch on to any harm, no matter how trivial. The public authority simply has to ask whether there is prejudice, applying the word in an ordinary English way. The information commissioner will bring her views to bear on where the line is to be drawn.

Lord Lester of Herne Hill

I am not sure whether the Minister accepts that the word "prejudice" must mean something that is not trivial, but real and substantial. I think that he accepted that it would be a misuse of the legislation and would fetter unduly the right of public access if an official were to say that revealing information about the colour of the wallpaper in the Cabinet Office would cause some prejudice—I am thinking of a Home Office official who once said that to me—because there were other countervailing considerations of secrecy. There are other trivial examples such as information about the food served in the canteen. I take it that it is common ground that "prejudice" is meant to mean something significant or substantial.

Secondly, if that is left undefined, no particular weight is given to the public right of access in the balancing process. The data protection legislation gives a particular weight to the right to personal privacy. It applies the principle of proportionality, as the noble and learned Lord, Lord Williams of Mostyn, said in the answer that I was talking about. A countervailing public right of access has to be given enough weight, so that the balancing process at the second stage—if matters have to go that far because the issue is substantial—is guided by a fundamental constitutional right, subject to exceptions, that has to be applied proportionately. In other words, exceptions should not be taken to excess.

I am sure that that is common ground, because it would not fit in with any of the other legal concepts that I have summarised. It therefore needs to be expressed in some way. That can be done by using an adjective such as "significant" or "substantial" to qualify the prejudice, or by specifying that at the second balancing stage, special weight should be given to the public's right to know. If that is common ground as a general approach to the Act, we can discuss the wording later.

Lord Falconer of Thoroton

I shall have to check, but it sounded as though the noble Lord gave exactly the right series of steps that have to be gone through. He said—accurately, in my view—that there was an open balance to be struck at the Clause 13 public interest test stage. The public interest in disclosure is put on one side of the scale and the public interest in maintaining the exemption is put on the other side. That is how the Bill is drafted. It goes back to the point that we discussed on Tuesday when we considered the amendments tabled by the noble Lord, Lord Goodhart, which were intended to shift the balance the other way to deal with cases in which the balance was equal. Under the Bill as drafted, there will be no disclosure if the balance is equal.

The Bill provides for an equal balance. The factors in favour of maintaining an exemption are to be weighed against the factors in favour of disclosure. The noble Lord is suggesting that an authority should disclose unless there is a very good reason not to do so. That is not how the Bill is drafted. The only factors to be considered are what is on one side of the scale and what is on the other side.

Prejudice must be real. Of course I accept that there is no prejudice in revealing the colour of the wallpaper or the canteen food. However, I come back to the point that nothing is achieved, legally or in principle, by adding an adjective that glosses the word "prejudice" when the Bill envisages a balance between the public interest in disclosure and the public interest in maintaining the exemption. There is no difficulty in applying that test, not just because it has been applied before in the statutes that I have referred to, but because the courts are well aware of the concept. They have to consider the possibility of prejudice to a fair trial when deciding on striking out prosecution actions or dealing with contempt applications. The courts consider the word in all manner of cases. They know what it means—it means whatever is appropriate in the context of the material under consideration.

Lord Lucas

Does the Minister agree that, when the public interest is measured, some weight should be given to the general public interest in disclosure? It is in the public interest that the Government should generally be open.

Lord Falconer of Thoroton

I most certainly agree. I made it clear when I dealt with the purpose clauses at the beginning of our consideration in Committee that the right to know, as we have defined it with all the checks and balances, exists partly in order to promote openness of government, because that is good.

With the greatest respect to the noble Lord, Lord Lester, there is an error in his argument that because harm, no matter how small, is enough to trigger the exemptions, that could lead to problems. If the harm is comparatively light, it will not be difficult for the public interest in disclosure, which is explicitly referred to in Clause 13, to outweigh it.

Lord Lester of Herne Hill

This is an important matter. I know that there must be an end to this dialogue—or polylogue—in a few moments, but I should like to try once more. I think that the Minister said that I was mistaken in thinking that there was a right of public access unless there was some good reason for not giving it. He cannot have meant that. Surely we can agree that, if there is no good reason for withholding information, it should be provided. The principle of proportionality—that none of the countervailing interests should be taken to excess—governs that. We may not call it the principle of proportionality, but we are trying to get at the notion that there is a public right of access and countervailing rights and considerations.

The process starts with the public right in Clause 1. That is balanced against the exemptions. When it is appropriate, necessary, proportionate or reasonable in all the circumstances, if the prejudice is trivial or the public interest in maintaining the exemption is much less important than the public interest in the right to free expression and access to the information, the balance comes down in favour of disclosure. Therefore, if there is no good reason not to disclose, inevitably the balance will come down on the side of disclosure; otherwise, we shall be cheating the public in telling them that Parliament has given them a right to disclosure of information which they cannot enjoy, even though there is no good reason for withholding it. Surely there is common ground on those propositions.

9 p.m.

Lord Falconer of Thoroton

We must he very careful to stop this dialogue because it seems to me that we shall simply confuse the world at large. We say that there is a right to disclosure of information but certain circumstances exist when information should not be disclosed. The reasons for that are set out in the exemptions. Even if the exemptions apply, that will not of itself be sufficient in every case. One must balance the public's right to know against the reason for the exemption and, only if the balance is still in favour of the exemption, does one not disclose. I believe that it would be a mistake for us to—

Lord Archer of Sandwell

At the risk of being tiresome, I wonder whether my noble and learned friend can assist me. This is an issue which will arise on another group of amendments a little later. Is he really saying that this is an argument about semantics because, in any event, the exercise will be carried out at the balance stage, or is he saying that it may make a difference because it would be a tie-breaker? If it makes no difference at all, is he saying that it does not matter whether the amendment is made or not?

Lord Falconer of Thoroton

As I said to the noble Lord, Lord Goodhart, it could make a difference, although not substantially, in the application of the balance, as in the tie-breaker case. However, I said to the noble Lord, Lord Goodhart, that I did not believe that that would occur often. I indicated to the noble Lord that I would reflect on what he said. However, I also made it clear that I would give no assurances of any kind in relation to what would happen. However, it is in the tie-breaker case, which I believe is unlikely to arise, where it is not the word "substantial" that will make a difference but the way in which the balance is set out in Clause 13.

Perhaps I may turn to the question raised by the noble Lord, Lord Brennan, in relation to the Scott Inquiry. The Freedom of Information Bill obviously does not deal with relations between Members of Parliament, whether in this House or in the other place, and Parliament as a whole. Therefore, it is for Parliament to regulate the information that should be given in answer to parliamentary Questions.

The Scott inquiry covered a huge range of documents and material. If it had been law at the time, the Freedom of Information Bill would have allowed a series of questions and requests for information which would have accessed much of the material in the Scott inquiry. That would have been a test. I cannot say that such questions would have accessed every piece of material because I do not know (because it is so voluminous) whether every part of that material would have been unexempt or whether part of it would have been exempt but then released under the discretionary test under Clause 13. I can say that it provides a different regime from parliamentary Questions, but that regime provides a useful means for members of the public, whether MPs or not, to test the Answers given by Ministers in the House.

Lord Brennan

Perhaps I may ask for a little further clarification. Does that mean that, when Members of this House ask a parliamentary Question, they will not be faced by a Minister relying on the terms of this Act?

Lord Falconer of Thoroton

As I said, the terms of this Act do not deal with the relations between a Member of Parliament and the Minister who is being questioned; they deal with a member of the public asking a public authority for information quite separately from Parliament. The Freedom of Information Bill has no part to play in that.

Lord Mackay of Ardbrecknish

This has been a complicated debate, especially for a layman. I sum this up with some trepidation.

The noble and learned Lord the Minister was reduced at one stage to having only "great" respect for the noble Lord, Lord Lester. That reminded me of the explanation given to us lawyers by the noble and learned Lord, Lord Simon of Glaisdale, as to what exactly "with respect", "with great respect", "with the greatest respect" and "with the very greatest respect" meant. The "very greatest respect" really meant, "Your arguments are absolutely useless". However, I have to be polite. I am sure that that is not what the noble and learned Lord meant; nor did he get near "the very greatest respect".

Lord Lester of Herne Hill

I wonder whether the noble Lord is aware of the other joke which I believe one is permitted to make, about the daughter who asked her father why they were hopelessly lost. "Shut up", he explained.

Lord Mackay of Ardbrecknish

We may have got near to that. I was quite surprised at the answer given to the noble Lord, Lord Brennan. I do not want to go over the Scott material—not that I was involved in that, although some of my friends were. However, it seems to me that if an MP asks a question, whether about that type of matter or about something else concerning relations between the UK and a foreign country, and the Government do not want that to become public, they do not give a proper parliamentary reply. They give a reply which relates to a similar subject or they find a neat way to evade the question. Therefore, I am not entirely sure that I understood what the Minister said.

If the MP went outside Parliament and used the Freedom of Information Bill, would he then be able to obtain some of the information which he had not been able to obtain via a parliamentary Question because of the clever way that Parliament manages to allow Ministers to answer Questions without giving information? I cannot remember—although I probably shall later—the expression about the best parliamentary answer. I believe that it is along the lines of answering the question without giving any information at all.

We have had an interesting debate and I believe that the subject is important. I did not introduce it at any great length because I was not sure when we would adjourn. I had a fair idea that the noble Lord, Lord Lester of Herne Hill, would get stuck into the argument. However, as a layman I am puzzled by the fact that this is not simply an argument between the noble Lord, Lord Lester, and the noble and learned Lord; it has been a much wider argument as to whether "substantial" is sufficient. The only outside evidence that I brought in was that of the Scottish White Paper on the open government proposals in Scotland. They were stating clearly that just saying "prejudice" was not enough. It had to be qualified and strengthened in some way. I left it at that because I thought that was sufficient.

However, it must be said that this argument was covered in the Government's own White Paper. The Government said in their White Paper that the tests of the previous code that we have talked about were insufficient. It was proposed that the Bill's tests should instead be set in specific and demanding terms. That would be done by allowing information to be withheld only where disclosure would be likely to cause substantial harm. So we go back to David Clark's original paper and my simple question—not looking for an argument between the lawyers about this—as to why the Government have changed their view between the David Clark White Paper and the Bill.

Then, of course, there are the two Select Committees, that chaired by the noble and learned Lord, Lord Archer, and the House of Commons Public Administration Select Committee. No doubt the Minister knows about those. I shall quote from the House of Lords Select Committee, as that seems to be appropriate in the House of Lords. That report stated that, we believe that 'prejudice' alone is not sufficient to justify exempting information from public access. We would amend the draft Bill wherever 'prejudice' is the test for exemption, to require that disclosure 'would substantially or would be likely substantially to prejudice' a protected public interest". The report then mentions in particular Clauses 21, 22—the one we are talking about—Clause 23, which we shall come to, Clause 24 dealing with the economy, Clause 26 dealing with the law enforcement and Clause 28 dealing with decision-making in general. The House of Commons Public Administration Committee came to the same sort of conclusion.

As a non-lawyer, I ask why those bodies—the Scottish body, the White Paper, the two Select Committees—think it is so important that prejudice should be qualified and yet the Government do not. The jury is still out on that. I shall withdraw the amendment for the time being but I suspect that we must return to this issue on Report.

Amendment, by leave, withdrawn.

Lord Mackay of Ardbrecknish moved Amendment No. 135: Page 13, line 41, at beginning insert ("Except in respect of information provided to a public authority by the European Union, its member states, institutions, organisations, or related bodies,").

The noble Lord said: I hope that we do not get into such deep waters on this amendment. It is a simple amendment which deals with the information provided to a public authority by the European Union, its member states, institutions, organisations or related bodies.

The point about this is that I do not believe that, when we come to our dealings with the European Union, we are dealing with another state in the conventional way. We are dealing with a body (a) of which we are part and (b) which has a considerable influence over what happens in this country. One could almost say that it is a sort of department of government because it has an influence of fisheries, agriculture, trade and industry, economics and almost everything. It has a significant interest not in freedom of information but in various confidentiality issues, working practices and all those matters.

Therefore, it seems to me that the public should be able to gain access to those matters in relation to the European Union to which they would have access within the United Kingdom. There is a great deal of concern about excessive secrecy in European Union institutions. I do not think that anybody would argue about that. This amendment provides that information obtained from the EU and its institutions could not be reasonably withheld. Clause 25(1) would still apply to information whose disclosure was likely to prejudice—or substantially prejudice—the UK's relationships with the EU or with a member state. Otherwise, a lot of that information should be available. That is the purpose of my amendment.

As we become increasingly more enmeshed in the European Union and those intra-EU debates and papers become much more the background on which decisions are made, the public have a right to know about those papers in the same open way as they have a right to know about government documents inside our own country. I beg to move.

Lord Lester of Herne Hill

This amendment raises an interesting and important issue. My noble friend Lord Goodhart and I are both members of Sub-Committee E of the European Communities Select Committee of the House. In the 16th report dealing with the draft EU public access regulations, we face an extremely interesting problem, which this amendment is partly about; namely, what happens if, when the EU draft regulation comes into force, it is more restrictive to the flow of information than national law would be?

The Swedish Government are particularly concerned that their very liberal regime may be eclipsed or limited by a less liberal EU regime in relation to information about the workings of the EU. We thought about that carefully. Paragraph 177 of our 16th report stated: some modus vivendi will be necessary to prevent leakage by national administrations of documents which would undermine the EU system". We noted that member states are already bound by a duty of loyal co-operation and that specific reference to the duty in the regulation was unnecessary. The report stated: There should be no opportunity for leakage which would undermine the EU system. There may be situations where the national authority, if its domestic system is more liberal, should seek the views of the institution. That said, the community system should not create any unnecessary restrictions, especially where the national FOI regimes are more liberal". That means that we should put our energy, through our Government, into ensuring that the EU regime is not unduly restrictive. However, what we cannot do, compatible with our duty of loyalty to the EU institutions, is to allow our own regime to undermine the integrity of the EU system. Therefore, I do not believe that this amendment is desirable because it is not the right way to tackle the problem. We should make the EU system as liberal as our own regime, but it seems to us that we have a duty of co-operation.

9.15 p.m.

Lord Bassam of Brighton

I hesitate to try to put the matter better than the noble Lord, Lord Lester, but perhaps I should repeat the argument. The Government feel that the importance of maintaining good international relations for the United Kingdom is paramount, and as such it is essential that the Bill, as the noble Lord suggests, protects confidential information in this area.

I was slightly intrigued by the comparison by the noble Lord, Lord Mackay, when he referred to the EU as being not another state, but rather more like a department of government. That is not an argument that I have heard advanced from the other side of the Committee before. It is an interesting point and perhaps one on which we need to reflect.

Looking at the Bill holistically, one sees that it is drafted on the understanding that freedom of information will respect duties of confidence because such disclosure will always be prejudicial. In the area of international relations, the confidentiality of diplomatic documents is universally recognised. The removal of the presumption of that protection would itself prejudice our relations with the European Union, no less than with other states and organisations, which is the kernel of the argument of the noble Lord, Lord Lester. I can see no logic in treating the European Union differently from any other international organisation of which the United Kingdom may or may not be a member.

I appreciate that the intention behind the amendment may arise partly from a concern that the institutions of the European Union are particularly secretive. I stress that the Bill does not automatically exempt documents from the other states or organisations. Clause 25(2) applies only where the terms on which the information has been obtained require the information to be held in confidence or where the circumstances make it reasonable for the state or organisation—in this case, the European Union—to expect that it will be so held, as provided for in Clause 25(3). Moreover—we keep returning to this point—the public interest test will also have to apply to such information.

Finally, the European Union is committed to increased openness by virtue of Article 255 of the Amsterdam Treaty. That goes back to the point that the noble Lord, Lord Lester, made: that if it is felt that in the end our FoI legislation is better than that within the European Union as a whole, it is for us to go into those international fora and argue for improvements across the board. Trying to do the job through this amendment is not the right approach, although I suppose that the noble Lord opposite could argue that that may be one of the levers.

Implementation of Article 255 will mean that more documents relating to the working of the European Union will be disclosed by European Union institutions themselves. It is probably worth reassuring the Committee that we shall seek to ensure that the scales are balanced in favour of openness in the way that we are trying to achieve in the Bill.

I trust that having heard that argument, the noble Lord will feel able to withdraw his amendment.

Lord Mackay of Ardbrecknish

I shall withdraw the amendment but, first, I want to point out that the EU is completely different from another member state. We could have negotiations with another member state; we could agree to differ on something and that would be the end of it. If one is negotiating on a wide range of issues in the European Union, one could agree to differ, but if a provision requires a qualified majority vote, we would have to follow the road that the others chose. Therefore it is not another member state with whom one is negotiating; this is an entirely different matter.

I was perhaps not clear in my example of another government department. But in many ways the EU can be like another government department. It is involved in the decision-making on an issue and somehow or other it would be able to stop any of the information going out to the public even if that information would normally have been available because it would have fallen within this Bill and would have had to have been disclosed. For example, a huge amount of confidential paper will flow from one member state to another on agriculture and fishing. If that was flowing inside the UK Government, I suspect that under this Bill people could possibly access a lot more of it. I am concerned that, because a piece of paper originates in the European Union, the British public may not have the same access to it as they would to a piece of paper originating within the Government of the United Kingdom.

The Minister might have said that my fears were unfounded, and I would have been happy with that. But he was not able to do that. In fact the noble Lord, Lord Lester, rather let the cat out of the bag by saying it may well not be as liberal a regime as ours, but we shall just have to live with it. The Minister said we shall have to work to try to ensure that the European Union's system is more liberal. But it is rather frustrating that if, due to the fact that the European Union has a less liberal regime than ours, information which if it was entirely within the UK would be made available will not be made available. That cannot be right.

Lord Lester of Herne Hill

I am grateful to the noble Lord for giving way. Perhaps I can correct one impression I obviously created. I was not saying that we just have to live with it. I was saying that what we need to do, and the Government have said that they will do, is to ensure that the balance is in favour of disclosure and that we do not have a regime thrust upon us which is an illiberal regime. At the same time I was trying to say that we have obligations of loyalty and solidarity which means that we cannot allow our system to undermine the integrity of the EU system as a whole.

Lord Mackay of Ardbrecknish

I understand that. But interestingly enough, the very open American system has over the years undermined our system of secrecy in the case of shared material. People in this country have been able to obtain information from the United States, under their Act, which they failed to obtain in this country.

Lord Lester of Herne Hill

Again I am grateful to the noble Lord for giving way. The United States and the United Kingdom are not in the same kind of treaty obligation relationships as we are with the other partners in the European Union.

Lord Mackay of Ardbrecknish

I appreciate that. I still feel it would be unfortunate if citizens in this country were denied information that they would have got if it had not been for a more restrictive regime in the European Union with whom we are in some form of relationship. But I do not want to go on about this. I have made the point.

Perhaps I can sum the matter up like this. It is clear on all sides that if, in fact, this Bill is to work properly over the whole field of government, then we have to ensure that the European Union has the same sort of freedom of information regulations as we will end up with in this country. I do not believe there is too much disagreement on that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 136 not moved.]

Clause 25 agreed to.

Clause 26 [Relations within the United Kingdom]:

On Question, Whether Clause 26 shall stand part of the Bill?

Lord Mackay of Ardbrecknish

I gave notice of my intention to oppose this clause as a simpler way to debate it and probe it than tabling a series of amendments.

Clause 26 is not about our relationships with other countries, whether or not they be European Union countries; it is about relationships within the various administrations in the United Kingdom set up by the Government's devolution measures. Clause 26 would exempt information whose disclosure would prejudice relationships between any of the devolved administrations or between any of them and the UK Government. For instance, it prevents disclosure of any information which might prejudice relations between the Scottish Administration and the Northern Ireland Assembly, or between the Scottish Administration and the United Kingdom Government.

I am sure that the purpose of the exemption is to allow the UK Government to hold private internal discussions on matters which, if disclosed, might cause such offence to a devolved institution—or, more importantly, to the public opinion of that devolved institution—so as to prejudice relations between the administrations. I suspect that the argument over student fees made relationships between the two administrations a bit ropy behind the scenes but we never got behind the scenes. That is the point.

Ministers have suggested that we may need these exemptions because UK civil servants will be commenting to UK Ministers in critical terms on how the Scottish Parliament is dealing with some health matter, an outbreak of food poisoning or whatever. The UK Government's plans to deal with moves towards an independent Scotland, if that ever came about, would therefore be made public, which in the Government's opinion might he in no one's interests.

However, it is not clear why a special exemption for such matters is required. The combination of Clause 33, which is the formulation of government policy and ministerial communications, and Clause 34, which relates to the reasonable opinion of a qualified person, would inhibit frankness of advice or prejudice the effective conduct of public affairs. Clause 39, which relates to information exchanged in confidence between public authorities, would seem more than adequate for the circumstances.

The exemption also highlights the fact that both the Welsh Assembly and the Scottish Executive have introduced, or are proposing to introduce, more demanding openness regimes than the Bill provides. I have already mentioned that the Scottish White Paper—if that is what it is called—with the blue cover suggests a more open regime and demands a higher test than just prejudice.

We shall be confronted with a Scottish freedom of information Act which in certain aspects will go beyond the present Westminster Bill; for instance, substantial prejudice. It will also go beyond it as regards ministerial veto because Scotland's information commissioner would be able to make binding rulings on public interest disclosure of information covered by the harm test exemptions. There would be no form of ministerial veto over these, whereas the UK Bill allows a ministerial veto over all public interest notices applying to government departments, whether the exemptions involve a harm test or a class exemption.

Factual information relating to policy decisions would have to be disclosed unless it would substantially prejudice collective responsibility or frankness and candour. In the UK Bill, that information is subject to the class exemption for policy formation. Furthermore, as regards the reasonable opinion of a qualified person, the Scottish proposals have no equivalent to Clause 34, which allows UK authorities to withhold information which in their reasonable opinion would prejudice collective responsibility, inhibit frank advice or prejudice the effective conduct of public affairs. Those decisions would be immune from challenge unless they were unreasonable to the point of irrationality. None of the Scottish exemptions give legal weight to an authority's opinion.

However, the Scotland Act will not allow direct access to information which Whitehall departments supply to the Scottish Executive. In that regard, it is a little like the previous clause we discussed. The Scotland Act precludes the Scottish Parliament from attempting to establish such a right of access. The memorandum of understanding between the UK Government and Scottish Ministers, and between the UK Government and the National Assembly for Wales, states that each administration will respect the confidentiality of information supplied to it by the other. Of course, the concordats are designed to reinforce that approach.

The Scottish Executive's consultation paper states: It is not expected that the majority of information passed to the Scottish Executive by Whitehall will be deemed to be held in confidence". I am not sure that that will turn out to be the case. It would be interesting to know whether it will. I should think that possibly everything passed by UK Government departments to their Scottish counterparts, other than what is published, will be supplied in confidence and it will not become publicly available in Scotland.

In some respects, the issue is the same as the previous one. We have a more open system in the UK, a less open system in the EU and the documents which flow will be ruled by a less open system. There is a more open system in Scotland than in the UK Parliament. What happens to documents which flow between them? I believe that Clause 26 almost shuts the door on a good deal of the interesting documents which pass between the various constituent parts of the UK.

I accept that at the moment that is probably not a very difficult problem because there is a Labour government here and in Scotland, with the help of a few Liberal Democrats. However, the Labour Government in Scotland still has a good deal of contact with Westminster in that a number of its Members have also been Members and Ministers in another place. This argument is perhaps less valid than it was two weeks ago when Donald Dewar was both a former Cabinet Minister at Westminster and First Minister in Scotland. Therefore, the relationship was close. That relationship will not in future be as close, even if a Labour Member becomes First Minister. His relationship with colleagues will not be as a former member of the British Cabinet.

The Committee will appreciate that if in future another party gains power either here or in the Scottish Parliament the complexities as to the flow of information will increase. It may be that there will be good party political reasons for one or other of the participants wanting a piece of paper to reach the public domain. There may be a considerable argument between the two as to whose freedom of information regime should rule. Whatever this Bill provides, I envisage circumstances in which that may damage the whole fabric of the Union.

I should like to hear from the Minister how he justifies the clause, how it will work, whether he appreciates that further down the road—not today when he and his colleagues in Scotland are in government—different parties may be in power, perhaps with different objectives in certain fields, and how confident he is that huge clashes over Clause 26 will not arise.

9.30 p.m.

Lord Goodhart

We too are seriously concerned about Clause 26 and what it is intended to achieve and why the Government believe that it is needed. If one considers constitutional theory, it is very odd that a clause of this kind should be included. After all, it is well accepted that in international relations a degree of secrecy is necessary. That is duly dealt with in Clause 25. However, in Clause 26 we are not concerned with relations with foreign governments.

As a matter of constitutional theory, though not in practice, the Parliament at Westminster is still supreme and the Scottish Parliament and the Welsh and Northern Ireland assemblies are not even parliaments of federal states but regions, in the sense of the United Kingdom as a whole, with their own devolved government: so too, although obviously with less powers, are the councils of England. One would not have dreamt of giving exemption on the ground that disclosure of information by one government department might prejudice its relations with another; nor would one expect to find an exemption for information in the possession of one county council on the ground that its disclosure by that authority would prejudice its relations with neighbouring county councils. In this case one would expect not to find any special provision such as Clause 26. In order to justify its retention, there must be some special reason. It is hard to see what that reason could be.

The noble Lord, Lord Mackay of Ardbrecknish, suggested that a problem might arise if, let us say, the Government in Whitehall were to consider what reaction it should take to pressure for independence in Scotland. That is clearly and legitimately within the scope of Clause 23 of the Bill. It is the formulation of government policy. A great deal of information—probably far too much information—may be the subject of confidentiality. Indeed, as the noble Lord pointed out, the concordats between Westminster and the administrations of the devolved assemblies and parliament already provide the possibility for extensive confidentiality.

Therefore, one wonders what the Government have in mind. Unless they can give a very clear explanation of why Clause 26 is necessary, then it should be removed from the Bill. It is certainly not self-evident why this particular exemption is required.

Lord Norton of Louth

Perhaps I may add my support to my noble friend. I feel rather in the position of a student who comes in at the end of a class and says, "Well, everything I want to say has already been said." I fear I am also in grave danger of doing what the student then does; namely, repeat what has been said. I shall try to avoid that.

I have exactly the same feelings as my noble friend and the noble Lord, Lord Goodhart, about the clause, particularly in relation to the other provisions of the Bill and trying to work out what it covers that is not covered by other clauses. It is an extraordinarily broad provision to allow an authority to claim that virtually any aspect of its dealings with another administration is eligible for exemption.

I know the Minister will say that a public interest test will be applied. But why should one have to go through the process of applying a test? I cannot see what information should be exempt that is not covered by another clause in the Bill. The other clauses cover subjects that should be considered exhaustive in scope. This clause appears to be a sweeping-up operation to allow the bodies covered an opportunity to claim exemption for something they have not been able to withhold under another head. I do not see why that opportunity should exist. The clause is unnecessary. The Minister will have to come up with a compelling argument to explain why it should stay in.

Lord Hunt of Wirral

As the noble and learned Lord the Minister knows, an understanding of some of the complicated provisions to which my noble friend has just referred would be greatly helped by the Minister giving some specific examples. Several speakers have asked for that in seeking to discover the need for this clause. As my noble friend said, on the face of it, the issue is covered in other parts of the Bill. Therefore, perhaps we can get down to some specific examples.

I cannot envisage at the moment any situation where, say in the National Assembly for Wales, so far as its relationship with any other similar administration is concerned, any information which came to light concerning that administration would not be caught somewhere in the Bill. It may well be that the noble and learned Lord the Minister, as always, is exceedingly well briefed. So we await with great pleasure and anticipation the very detailed examples he is now going to give us.

Lord Falconer of Thoroton

Quite a build-up! I have been asked about the reason for having Clause 26 in the Bill. We take the view that disclosure which damages relations between the United Kingdom Government and the devolved Assemblies and Parliament is in principle bad. The balancing act under Clause 13 will have to be performed, but disclosure of information which damaged our relations with the Scottish Parliament and the Welsh and Northern Irish Assemblies would be detrimental. The provision is reflected in the freedom of information Acts of other countries; for example, Australia and Canada. In those countries there is a similar exemption in the federal statute concerning relations between the member states.

The noble Lord, Lord Goodhart, in my view wrongly, seeks to equate the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales with either a government department or a county council. With the greatest respect, if he seeks to equate them with those examples, he has not fully understood the purpose of devolution. As a matter of policy, we think it is an interest worth protecting.

The noble Lords, Lord Mackay of Ardbrecknish and Lord Hunt, asked for examples of where the exemption might apply where it is not covered by Clauses 33 or 34. I shall give two examples. First, let us suppose that there was kept in a government department a thumbnail sketch of the strengths and weaknesses of the individual members of an executive. That would not assist relations between the devolved Assembly or Parliament and the UK Government. It would not be caught by Clause 33 and it probably would not be caught by Clause 34. A second example might be comments within a government department on a devolved administration's policy proposals or Acts.

Lord Hunt of Wirral

I hope that the noble and learned Lord will forgive me but I am rather incredulous. No doubt he was well briefed before he said what he just said. What thumbnail sketches have the Government been accumulating of the leading personalities of the National Assembly for Wales? All those in the National Assembly would be intrigued to know. In particular, what is it within those thumbnail sketches that the public does not have a right to know?

Lord Falconer of Thoroton

I am not suggesting that there are such thumbnail sketches. The noble Lord asked for examples of particular areas that would not be covered by Clauses 33 or 34. Pictures of people or discussions of policy proposals of other administrations are examples of what would not be covered by Clauses 33 or 34.

Quite separately from those examples, it is right that in the Bill the exemptions are clearly targeted and defined. Yes, there should be catch-alls, but where there is an intention to have a particular exemption for a particular purpose, that should be spelt out in the Bill.

Lord Lester of Herne Hill

I am grateful to the noble and learned Lord. Clause 34 covers prejudice to the effective conduct of public affairs. It gives another exemption for information whose disclosure would be likely to prejudice, the work of the Executive Committee of the Northern Ireland Assembly". The clause does not mention the Scottish Parliament and Executive or the Welsh Assembly. What I do not follow in terms of the design of the measure is why one cannot have a more narrowly tailored exemption under Clause 34 for any information whose disclosure would impair or frustrate the work of the Scottish Parliament, the Welsh Assembly, the Northern Ireland Assembly or the administrations. If, hypothetically, Whitehall holds information that is critical of certain Members of one of those devolved bodies—perhaps suggesting that some of them might be nationalists or whatever it might be—one can see that, if disclosure of such information was sufficiently harmful, then surely it should be targeted under an expanded version of Clause 34 rather than including a catch-all exemption of the kind now provided for in Clause 26.

9.45 p.m.

Lord Falconer of Thoroton

The approach we have adopted in relation to exemptions is as follows. Where there is a particular interest that we regard as being sensible to protect by use of an exemption, that is then spelt out. Clause 34 is the catch-all clause. Its provisions lay down a test, not specifically targeted in the manner of the previous exemptions, but in place to catch those matters identified which would not be caught by any of the targeted exemptions.

The point raised by the noble Lord, Lord Lester, begs the question of whether we should include a catch-all clause under Clause 34. By virtue of his question, he appears to accept the principle underlying Clause 26. If, for the sake of argument, we assume that he has accepted the intention that lies behind that clause, then the correct course is to accept Clause 26, which is properly targeted. We can later debate the merits or otherwise of including a catch-all clause when we reach Clause 34.

Lord Goodhart

I apologise for again interrupting the noble and learned Lord. The example he gave of something that might appropriately be exempted under the provisions of Clause 26 was that of a dossier kept on, shall we say, leading Members of the Scottish Parliament. If the Government choose to keep dossiers on leading Members of the Scottish Parliament and, perhaps, on leading Members of the Opposition in Westminster, what is the justification for treating them differently?

Lord Falconer of Thoroton

So far as concerns dossiers or simple accounts of those working in the devolved assemblies, the production of such documents would prejudice relations with those administrations. If the noble Lord accepts the principle which underlies Clause 26, as do the Government, namely, that documents which might prejudice relations with the devolved assemblies should not be produced, that principle justifies the position in relation to Clause 26.

We regard relations between the United Kingdom Government and the devolved assemblies as worthy of special protection under the terms of the Freedom of Information Bill. The example cited by the noble Lord in relation to Westminster would not apply. There is no special interest that requires protection. What underlies Clause 26 is the belief that a special interest is entitled to protection, as provided for in both the Canadian and Australian Acts. One can agree or disagree about what is entitled to protection, but if one takes the view that certain matters are entitled to special protection, then the provisions of Clause 26 make sense.

Lord Norton of Louth

I am in some difficulty in trying to follow the line of argument here. The principle just enunciated by the Minister is that our administration should not produce anything that might cause harm. If the administration should not produce something, then it should not do it. I do not see how that can relate to disclosure. Furthermore, I do not see how the noble and learned Lord's example bears any weight. He needs to justify the principle that he is enunciating here, rather than taking it as being self evident.

Lord Falconer of Thoroton

I find that comment extraordinary. Should the Government produce documents which might harm parts of the British economy? Of course examples can be cited where the Government might produce a document which states, "Having analysed the position, we can see that one would be better off investing in part X of the country rather than part Y." That is a perfectly sensible course of action. Equally, from time to time, it is perfectly sensible for a government to consider a situation along the lines of, "Look at what the Scottish/Welsh/ Northern Irish body has done. We think that the consequences of this will be as follows. We think that these are bad consequences" for whichever part of the country the document refers to. It is a fair, objective analysis, but it would damage relations. It cannot be said by the noble Lord with any degree of seriousness that the Government should not produce such documents. That is a bad argument.

The other point that has been made all along is whether it is right; whether it is a legitimate interest to protect the relations between the United Kingdom Government and those assemblies. We think it is. We think it matters to the Union.

Lord Mackay of Ardbrecknish

I am not at all convinced by the debate. We started off with the fairly bad example of a thumbnail sketch of the Executive members. Harking back to a previous debate, one wondered whether the Government were going to confirm, deny or be totally neutral on this one. In any case, the Government need not keep the thumbnail sketch of the Executive members secret; a similar thumbnail sketch will probably be in every Scottish newspaper this weekend—certainly for one side—as the Labour Party looks for a successor to Donald Dewar. So that was not a terribly good example.

I fear that a lot of the other examples concentrated more on damage in the political sphere than in any other sphere. As to the example that it would be damaging if it came out in Scotland that the United Kingdom Government had decided that something should go to "A" and not to "B", and "B" was in Scotland, all I will say is that it will become a self-evident fact once the contract is placed. A good example is the question of the allocation of shipbuilding between the Clyde and the Tyne, an issue which is fairly current.

I am not sure what the damage will be. It will be political—I accept that—but the political damage will happen someday when the decisions are taken. I am hesitant. If the information should be kept confidential and falls within the Bill, it should be the same as between government departments. We are going a lot further with the test and introducing a political element. I refer to an element of political embarrassment.

Although it is so late in the evening that the author is no longer in his place, I jotted down the remark, "I have little doubt that the Treasury is writing about the Barnett formula". It has been writing about it for years; nothing should change. The real problem will occur if the Treasury writes its usual note about the Barnett formula—that is, "This has outlived its usefulness. Scotland gets too much money. We shall have to do something about it"—I paraphrase. I shall not ask the Minister to confirm or deny that any such papers exist, but I am sure that they do. I am sure that that note would have to be sent to the Scottish Executive for its comments. After all, with any decisions about public spending, the department involved—in this case, the Scottish Executive—would be asked to come into the argument.

However, the Scottish Executive may think that that is a document which should not be kept private. Members of different parties may decide that it would be to their political advantage to expose that document. It does not take too much imagination to work out what I am talking about. For either of our two parties forming a government in the United Kingdom, and for the Scottish National Party if it won an election in Scotland and formed a government there, nothing would give them more grist to their mill than a document suggesting that the Goschen formula should be reduced and the amount of money going to Scotland should decrease. The noble and learned Lord and I might agree that such a document should be kept confidential, but the Scottish government might not agree. They may feel that it falls within the freedom of information Act in Scotland to release that document.

Perhaps the Minister can answer this question. If there is a conflict between, say, the Scotland freedom of information Bill and the United Kingdom Bill because the Scotland Bill is more liberal, which one rules? Will the Government try to ensure that a clause similar to this clause will be placed in the Scottish freedom of information Bill?

Lord Falconer of Thoroton

The question of which Bill rules is not quite the right question. When the Bill becomes law in Scotland, it will govern the obligation of public authorities in Scotland to disclose information—similarly, in relation to the freedom of information legislation in England, Wales and Northern Ireland.

If there are differences between the two pieces of legislation—and we do not know what Act the Scottish Parliament will produce; presently, there is merely a set of proposals—and if a document is in the hands of both administrations, each will be liable to disgorge it in accordance with the law governing that administration. Obviously, once a document is made public in one country—Scotland, say—it is hardly going to prejudice relations in the other for it to be published in the other country as well. The conflict envisaged by the noble Lord will never arise in practice. We are passing our legislation first, and in doing so it is right that we express the policy that we think is sensible. Any suggestion of conflict is misplaced.

Lord Lester of Herne Hill

Am I right in thinking that the examples given by the noble and learned Lord would violate the Data Protection Act 1998—since to maintain personal data, especially of a sensitive nature, on members of the Scottish Executive in a databank in Whitehall without adequate safeguards against abuse would be in clear violation of the 1998 Act. Therefore, the only example that has been given would fall away.

Lord Falconer of Thoroton

I have given two examples. One is the thumb-nail sketch, which I see has caused great interest. The other is comment on a proposal of a devolved assembly or parliament. The example of the thumb-nail sketch might or might not offend against the Data Protection Act. That depends on the form.

Lord Mackay of Ardbrecknish

It occurs to me that an even more interesting example might be thumb-nail sketches held by the Scottish Executive of the Government here in London! I bet the Government would use the Freedom of Information Act from here to yonder to stop those being published.

Now I am really puzzled. If what I hear is correct, the two Acts may turn out to be different. The Scottish Act could go down the road of the Scottish White Paper. A piece of paper could move between two—the Goschen formula or anything else—and the Scottish government could decide, on receipt of a request, that they had to release that document under the terms of their freedom of information Act, but the UK Government could say that its release was not necessary and that they did not want it released. First, I can see a fair amount of additional paper being generated between London and Edinburgh. But there is a more important point. I may be over-suspicious, but I see a "heavy hand" coming from here to Edinburgh to make sure that the Scottish freedom of information Act is no more liberal than the one we are being asked to pass. I foresee a serious problem if something is not right.

This has been a pretty unhappy debate—especially as we are not to be given the thumb-nail sketches! But this is a serious point. I do not know the answer. All I know is that it is one of the problems that may be thrown up by devolution when it comes to looking at an entirely new Bill. I have not heard a genuine reason why the clause should remain part of the Bill. Therefore, I may be tempted to divide the House on the Question that the clause shall stand part.

Lord Warner

Does the noble Lord accept that there could be circumstances in which notes of meetings between the different assemblies were produced and exchanges of letters were frank in their assessments. Would this clause provide a safeguard for those kinds of negotiations and discussions? Does the noble Lord accept that that would be a legitimate reason for using this clause?

10 p.m.

Lord Mackay of Ardbrecknish

The point was made much better by the noble Lord, Lord Goodhart, earlier. I do not know whether the noble Lord heard the noble Lord, Lord Goodhart, explain it. I bow to the noble Lord, Lord Goodhart, on legal opinions on Bills that are about to become Acts. It is our opinion that these kinds of issue are caught by other clauses in the Bill and that this particular clause is unnecessary and the Government have not justified it.

However, that does not detract from my main point that if the two freedom of information Acts turn out to be different and the Scottish one is more liberal, the kinds of problem I mentioned will certainly arise. They will arise by the spadeful if we have two administrations with different political views. I wish to test the opinion of the Committee.

10.1 p.m.

On Question, Whether Clause 26 shall stand part of the Bill?

Their Lordships divided: Contents, 53; Not-Contents, 17.

Division No. 3
CONTENTS
Acton, L.	Howells of St. Davids, B.
Amos, B.	Hoyle, L.
Archer of Sandwell, L.	Kennedy of The Shaws, B.
Ashton of Upholland, B.	Layard, L.
Bach, L.	Lea of Crondall, L.
Bassam of Brighton, L.	Levy, L.
Bernstein of Craigweil, L.	Macdonald of Tradeston, L
Billingham, B.	McIntosh of Haringey, L. [Teller]
Bragg, L.
Brennan, L.	McIntosh of Hudnall, B.
Brett, L.	MacKenzie of Culkein, L.
Brooke of Alverthorpe, L.	Patel, L.
Burlison, L.	Pitkeathley, B.
Carter, L. [Teller]	Ponsonby of Shulbrede, L.
Clarke of Hampstead, L.	Rendell of Babergh, B.
Davies of Coity, L.	Simon, V.
Donoughue, L.	Stone of Blackheath, L.
Evans of Parkside, L.	Taylor of Blackburn, L.
Evans of Temple Guiting, L.	Turner of Camden, B.
Falconer of Thoroton, L.	Warner, L.
Farrington of Ribbleton, B.	Warwick of Undercliffe, B.
Gibson of Market Rasen, B.	Wedderburn of Charlton, L.
Gladwin of Clee, L.	Whitaker, B.
Gordon of Strathblane, L.	Whitty, L.
Harris of Haringey, L.	Woolmer of Leeds, L.
Harrison, L.	Young of Dartington, L.
Hayman, B.	Young of Old Scone, B.

NOT-CONTENTS
Anelay of St Johns, B.	Lucas, L.
Blatch, B.	Mackay of Ardbrecknish, L
Dundee, E.	Northesk, E. [Teller]
Freyberg, L.	Norton of Louth, L.
	Park of Monmouth, B.
Goodhart, L.	Renton, L.
Henley, L.[Teller]	Roper, L.
Hunt of Wirral, L.	Shrewsbury, E.
Lester of Herne Hill, L.	Tordoff, L.

Resolved in the affirmative, and Clause 26 agreed to accordingly.

10.10 p.m.

Clause 27 [The economy]:

Lord Mackay of Ardbrecknish moved Amendment No. 138.

Page 14, line 40, leave out from first ("would") to end of line 44 and insert—

1. ("(a) harm the ability of the Government to manage the economy, prejudice the conduct of official market operations, or lead to improper gain or advantage;
2. (b) prejudice the assessment or collection of tax, duties or national insurance contributions, or assist tax avoidance or evasion").

The noble Lord said: I can be brief on this, because it is a straightforward argument between the terms of the Bill and the code of practice. The Government thought the code of practice inadequate, but it is stronger than the Bill. The amendment would replace the provisions for a contents exemption in the Bill with the wording used in the code of practice. It would tighten up the Bill, ensuring that only information that would genuinely harm a specific economic interest would be exempt. At the moment, the clause would catch all information relating to the economy. The Government must not be allowed to include such catch-all exemptions, especially as they have drawn up the Bill in such a way that, if information is covered by an exemption, the public authority, rather than the information commissioner, decides whether it should be released.

For those reasons, the exemptions should be worded as tightly as possible. The wording in the code is far superior in this regard to that in the Bill. The Government's supporters, who have just come so willingly to their aid in the Division, should ask themselves whether they believed that they fought the election for a Bill that is weaker than the code introduced by the previous Government. I beg to move.

Lord Bach

The amendment repeats one moved by the Conservatives in another place on 25th January. At the end of that debate, the Conservatives proposed to go away and see whether the amendment could be revisited in a "slightly more focused way". Unfortunately, the wording of the amendment today is identical. No doubt there has not been enough time since January to refocus it.

The intention behind the amendment is to focus the scope of the exemption at Clause 27. That is to be achieved by limiting the exemption to a number of identified important economic and financial interests. However, the issue goes further than that. The amendment fails to acknowledge the reality of life in modern Britain, which the Government have created through their policy and legislation to devolve responsibility and accountability to the people of Scotland, Wales and Northern Ireland. It is a glaring anomaly that the Opposition refuse to accept that the devolved administrations are here to stay. I except the noble Lord, Lord Mackay of Ardbrecknish, from that criticism, because at about this time yesterday he was saying that he accepted the results of the referendums, particularly the one in Scotland.

I do not dispute that the interests identified in the amendment are important, but the Government do not believe that they are the only important economic or financial considerations in relation to which the inappropriate disclosure of information could lead to real harm being done to the economy.

Clause 27(1) exempts information the disclosure of which would, or would be likely to, prejudice, the economic interests of the United Kingdom or of any part of the United Kingdom or the financial interests of any administration in the United Kingdom". That includes the UK Government, the Scottish administration, the executive committee of the Northern Ireland Assembly and the National Assembly for Wales. Clause 27 as drafted therefore specifically protects the interests of regional economies and the financial interests of the devolved administrations, in addition to the national economy. The amendment, as moved, would remove the specific protection for both of those.

We believe that the freedom of information regime should not require disclosure of information which would harm the economic interests of the United Kingdom generally or a part of the United Kingdom. However, we believe that that would be the inevitable result if this amendment were carried. Perhaps I may give a brief example. Public authorities such as the DTI may hold documents which set out the advantages and disadvantages of investing in different regions. If that type of information were disclosed to an overseas business organisation which was contemplating setting up a factory in the UK, the organisation may be put off its proposed investment. However, if this amendment were carried, that would not exempt such information from disclosure.

Before I sit down, perhaps I may remind noble Lords that the exemption at Clause 27 does not act as a bar to the disclosure of all information relating to economic or financial interests. First, it is a prejudice test-based exemption. It can be relied upon only where a public authority can establish that there would be or would be likely to be prejudice resulting from the disclosure of any particular information. Even where the authority reaches a conclusion that such prejudice would arise, the exemption is not an absolute exemption. The authority would still be required to apply the public interest test, and the Commissioner would be able to substitute her judgment for that of the authority in respect of either a claimed exemption or the judgment reached as to the public interest. We believe that that is the right way to ensure the correct balance between the right of the public to information on the economy and public finances and the need to protect such important—indeed, vital—matters.

The scope for real damage to the economy from the disclosure of information which would prejudice our economic interests is substantial. The amendment would remove those necessary protections, particularly for the legitimate interests of the regions and devolved administrations. For those reasons, I invite the noble Lord opposite to withdraw his amendment.

10.15 p.m.

Lord Mackay of Ardbrecknish

That was an interesting response. I should have thought that half of it had been overtaken by the fact that Clause 26 remains in the Bill. That clause sets out the catch-all position for relationships between the Government and the United Kingdom. I believe that the example which the noble Lord gave about a paper which set out for an inward investor the pros and cons of different parts of the UK would be covered by Clause 26; but possibly not.

I shall need to read what the noble Lord said to see whether he chides me correctly. However, I notice that he did not answer my main point: the words that I used are exactly the same as those used in the code of practice. At the last election that code of practice was considered by his party to be too weak. Yet in this Bill we find words which are weaker than those in the code of practice. I notice that none of his noble friends, who no doubt campaigned on introducing a freedom of information Bill which would be better than the code of practice, has come to his aid. Given the time, I am not surprised. I beg leave—

Lord Lucas

I believed that we had other important debates to move on to. However, if noble Lords opposite want to extend this debate into Wednesday of next week, I am sure that we can oblige. I find myself full of words and energy, even at this time of night.

It is quite clear that the ability to obtain such information has existed under the code for several years. It has not resulted in any harm to anyone and it is quite ridiculous that the Government should suddenly say that it will start to cause harm. Their argument is holed below the waterline by the fact that it has caused no harm in the past.

Lord Bach

The noble Lord cannot have been listening to my very reasonable arguments.

Lord Lucas

I was listening. However, I was not very impressed by them.

Lord Mackay of Ardbrecknish

This is the third Minister who has attempted to convince us. I shall resist the temptation to call a Division against him in order to have a full house. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 139 and 140 not moved.]

Clause 27 agreed to.

Clause 28 [Investigations and proceedings conducted by public authorities]:

Lord Archer of Sandwell moved Amendment No. 141: Page 15, line 5, leave out ("has at any time been") and insert ("is being").

The noble and learned Lord said: The noble Viscount, Lord Colville of Culross, in whose name this amendment stands, has asked me to say that he greatly regrets that he cannot be present—although he might perhaps have revised his view had he known the hour at which this debate was about to begin. However, he is unavoidably out of the country.

It may be for the convenience of the Committee if, with this amendment, we debate all the amendments up to and including Amendment No. 155.

At the outset, I echo the tribute which the noble Lord, Lord Goodhart, paid at an earlier stage in our debates to the Campaign for Freedom of Information. We have all benefited from what it has had to tell us and it has demonstrated to my satisfaction at least the value of the wide dissemination of information, even if it is information about freedom of information.

Clause 28 is about an exemption from the obligation to disclose; namely, information held by a public authority for the purpose of a wide range of investigations. They are investigations of precisely the kind where the public wants to know the facts because they relate to matters which concern the public. Indeed, that was often the whole reason why the investigation was embarked upon. One can think of a number of examples which I shall not quote in extenso at this hour—the Food Advisory Committee's inquiry into BSE, or the report which has just been handed in by the noble and learned Lord, Lord Phillips, inquiries into railway accidents which your Lordships were discussing earlier today, the falsification of nuclear quality control reports, inquiries into food poisoning, investigations into the Stephen Lawrence incident.

We are not discussing simply the contents of the reports. It is not merely those which the public may want to know about. The public are surely entitled to satisfy themselves that the investigations were adequately conducted, so they may need information about that too.

The number of public authorities which are caught by the clause are those set out in Schedule 1. Therefore, almost anything which bears on human activity may come within the subject which we are now debating.

The clause as at present drafted provides that information is exempt not merely when it is to be used for a prosecution or for disciplinary action but if it has ever been held by the authority at any time, even if the authority has decided not to prosecute or to take any action and even if the prosecution or the disciplinary action has taken place and there is no longer any further action which they might take. That surely is an extremely wide sector in terms of time—bordering, in fact, on eternity. Amendment No. 141 is intended to address that question.

There are other amendments in this group which go to the other question: that there is no harm test. This is a category exemption and the question of inquiring into the harm which may result simply does not arise.

My amendment goes a little further than some of the others because it seeks to provide that the harm should be substantial. The Committee has discussed that at some length. I doubt whether I should go to the head of the popularity stakes if I were once again to canvass all the arguments. I came prepared with a substantial number of quotations, most of which have been scooped by the noble Lord, Lord Mackay of Ardbrecknish.

However, I invite my noble and learned friend to have two matters in mind when, as I think he promised, he is considering this matter.

First, the Minister may wish to refer to the evidence given by our noble and learned friend Lord Williams of Mostyn to our Select Committee, where the matter was discussed at some length. So it has been discussed by all the authorities that the noble Lord quoted; it has been discussed by many more that we could cite tonight. To my knowledge—I stand to be corrected—it is the first time that I have heard the argument that my noble and learned friend addressed to us tonight. It was a persuasive argument. He certainly got me thinking and I promise to go away and think about it. As far as I am aware, it was invented at a late stage, because it was not used in any of the earlier discussions.

Is my noble and learned friend questioning what I say?

Lord Falconer of Thoroton

I cannot be sure of the argument to which my noble and learned friend is referring!

Lord Archer of Sandwell

If my noble and learned friend cannot remember his argument I shall try to refresh his memory. He said that it does not matter whether one uses the adjective "substantial" before "harm or prejudice" because it will all be subsumed when we come to the balancing stage. That is an argument that deserves reflection, but it is not an argument that I have heard previously.

Another matter I want to impress upon my noble and learned friend is that for some of us this was a great adventure. For years we have been waiting for the Freedom of Information Bill. At last, we have a Government who are committed to freedom of information. To their credit, they embarked upon the Freedom of Information Bill. After two evenings in Committee we have arrived at the most important matters at the heart of the Bill, a whole series of clauses relating to exemptions.

It is such a pity that after the years of waiting, now that the Government have introduced the Bill they have somehow managed to give the impression that they wish they were somewhere else. On Tuesday, my noble and learned friend assured me that they really are enjoying the prospect of seeing the Bill on the statute book. I accept that, but why can they not show more conviction? When my noble and learned friend says that it depends on how it is said, that may be so and how it is said may be quite important, particularly in relation to the way that the Bill is received in the country. I beg to move.

10.30 p.m.

Lord Hunt of Wirral

I support the words used by the noble and learned Lord, Lord Archer of Sandwell. Like him, I pay tribute to the Campaign for Freedom of Information. Perhaps I may add my personal thanks to the Law Society which also is concerned about this unacceptably wide class exemption in Clause 28. Perhaps I may argue strongly that one of the reasons why I was always concerned about the introduction of legislation and why I played a part in the introduction of the code, is that I knew this situation would develop. I knew that as soon as one sought to put legislation on the statute book, one would run into a series of necessary—so it is argued—exemptions. Here we have a classic example in Clause 28.

If we are to see at least as much information disclosed under this Bill as under the code, I believe that this class exemption needs to be replaced by some kind of harm test, preferably one of prejudice or substantial prejudice. Like the noble and learned Lord I do not want to repeat the points debated earlier. I suppose it is possible to contemplate a class exemption that would be limited to the investigatory period. Certainly that would be the next best alternative to what is proposed.

Looking at Clause 28, I support this group of amendments because information is exempt regardless of whether its disclosure would prejudice, in any way, the investigation or the proceedings. It is very widely drawn. First, it will apply indiscriminately to all information held by a public authority appertaining to an investigation, whether or not a decision is made to prosecute. While general information about the conduct of investigations will probably be covered by the prejudice test in Clause 29, a great deal of information would fall within the ambit of Clause 28, including, for example, routine investigations.

Secondly, it will apply indefinitely to information held at any time, so that, even after a prosecution or after a decision is made not to bring charges, the exemption will remain. Thirdly, it applies not only to information held by the police and the other prosecuting authorities, it applies also to a range of safety, environmental and consumer protection agencies; for example, the Health and Safety Executive, the Environment Agency and the Civil Aviation Authority. Fourthly, at no stage would authorities have to confirm whether or not they hold any information which is requested. Those four reasons show that it is an exceedingly widely-drawn exemption.

The noble and learned Lord, Lord Archer of Sandwell, mentioned the Macpherson report on the death of Stephen Lawrence. It rejected the idea of class exemption unequivocally. The authors stated, we see no logical grounds for a class exemption for the police in any area", and went on to recommend that, a Freedom of Information Act should apply to all areas of policing, both operational and administrative, subject only to the 'substantial harm test' for withholding disclosure". I know those issues were covered earlier this evening. But I join with the noble and learned Lord in reminding the Committee of the Select Committee's view on the exemptions relating to investigations and prosecutions conducted by public authorities. I hope Members of the Committee will share with us our considerable concern about the way matters are proceeding.

Speaking for a moment as president of the group on occupational health and safety, I am particularly reminded of Jenny Bacon's comments when director of the Health and Safety Executive. She told the Public Accounts Committee in another place that she felt that, in respect of health and safety matters a prejudice tested exemption would provide sufficient protection". So it is pretty authoritative and I cannot quite yet understand why the Minister, in earlier sessions and in another place, indicated a refusal to consider these matters.

I do not want to go into all the different examples, but, looking for a moment just at police investigations, any information about the handling of any police investigation would be exempt. The police would not have to reveal, for instance, whether any suspects or witnesses were interviewed; whether any searches were ever carried out or on which premises; or whether information given to them was ever acted upon. When one looks back on some of the instances which have become so notorious in recent months and years, one really cannot support the idea that that should prevail.

Information accumulated in the course of investigating deaths in custody would be exempt. That would include information in all the old cases because of the way the clause is drafted where, for instance, disclosure of information might show a pattern of behaviour amounting to a systemic problem. This has caused Members of the Committee on all sides of the Committee considerable concern. It could also mean a denial of access to vital information about restraint techniques which, if revealed, could show a problem with training of police officers or prison officers. All those are important issues.

Again, referring back to a previous responsibility as Secretary of State for Wales, if there was a suspicion of abuse in a children's home or care home for adults, under Clause 28(3) a local authority would not even have to disclose whether there had been any investigation of allegations of abuse, let alone what the findings were.

I mentioned the Civil Aviation Authority, which is a public authority under Clause 28. The CAA has specific responsibility for air safety and must maintain high standards through its Safety Regulation Group. It would not be required to release information on, say, a near miss between planes in mid air, despite the serious consequences that such an incident could have.

One has only to think of the different problems which arise in relation to environmental incidents to recognise that the Environment Agency also comes within the scope and ambit of Clause 28. The agency works hard to prevent and alleviate pollution, and assesses, I understand, more than 32,000 pollution incidents reported each year. It goes without saying that just one of those incidents could be very serious indeed. The agency rightly aims to inform anyone who wants to know the outcome of an assessment, but surely the public would have more confidence that nothing was being covered up if they had the right to information.

I do not want to go back over the previous debate on Clause 13. However, the Minister may well ask, "Why are you worried, because Clause 13 provides a mechanism for the release of information in the public interest, particularly for investigations which are no longer live?". That may be an argument and I look forward to hearing the Minister's reply. However, it must be emphasised that there is no guarantee that the police or other authority will be willing to release statements and other documents in their possession. Indeed, such a widespread release seems unlikely. Again, I believe that public confidence would be restored only if people knew that they had the right to certain appropriate information.

I could speak for much longer on the examples and arguments but I hope that the noble and learned Lord will be able to reassure us tonight. The balancing act of Clause 13 may deliver the information requested on occasions, but surely if we are to support the Act, we should support it in the way in which we introduced the code, which is to create a new culture of openness. It was welcomed by the Government—then the opposition—in that spirit. So we welcome any move to further that new culture of openness, but I regret to inform the Committee that I believe that this clause is a step backwards.

Baroness Kennedy of The Shaws

I rise to support the amendments and to express my concern about the way in which the exemption is drawn. It is a wide class exemption and it goes against the spirit which the Government are seeking to introduce with the legislation.

About five years ago, I chaired a public inquiry for Reading County Council into health and safety issues at Aldermaston. It was an interesting experience. The inquiry arose out of the concerns of local communities about the leaching of radioactive material into the water table. There were concerns about a cluster of leukaemia cases which were identified in the area.

What came out of the inquiry for me was precisely what the noble Lord, Lord Hunt, referred to: the sense in which people feel that they want to have access to information. Such information is often in existence and is held by bodies such as the Nuclear Installations Inspectorate or other health and safety bodies. However, the public do not feel that the information is readily available to them. I am concerned that the way in which the wide class exemption is drawn will prevent people who have genuine cause for alarm having access to material to which they should have access.

Like other Members of the Committee, I should like an assurance from the Minister about the whole purpose of the legislation, which was a source of celebration when the Government came into office as part of the great range of constitutional change. I was heartened that one of our most eminent judges, the noble and learned Lord, Lord Steyn, said that public information was part and parcel of the success that the Human Rights Act would enjoy. Freedom of information must walk hand in hand with other aspects of constitutional change. I encourage the Government to look again at the set of clauses to which the Committee is turning its attention and to be somewhat more generous than currently is the case on the basis of the drafting of the legislation.

Lord Lester of Herne Hill

As several Members of the Committee have observed, this clause has come under heavy criticism from a wide variety of sources, including the Select Committee of the other place and consumer groups of one kind or another. Many of the examples given by noble Lords illustrate those concerns. My noble friend Lord Goodhart and I tabled some amendments to reflect some of those concerns. If our understanding is correct, on close scrutiny Clause 28 does not carry with it the mischief that some have suggested; it is a narrower class category. On the other hand, it suffers from some defects. To explain, Clause 28(1), as with part of Clause 28(2), deals with the need to preserve the integrity of prosecuting authorities—the DPP, the Serious Fraud Office and the police—as far as concerns information in their possession relating to criminal investigations. Clearly, there is a strong case in the criminal sphere for a category exemption to cover those matters. The problem is that, in view of the way that Clause 28 is structured, the provision covers not only that important area but to an extent the kinds of inquiries to which the noble Baroness, Lady Kennedy, referred.

How does it do it? On our reading, Clause 28(2)(iii) covers information obtained in the course of other non-criminal investigations, civil proceedings, and so on. The crucial word is "and", because paragraph (b) is concerned with, the obtaining of information from confidential sources"; in other words, leaving aside the criminal aspect, in matters such as the investigation of the meltdown of a nuclear power plant, or something of that kind, it is intended 10 preserve information which may identify a confidential source. That gives rise to public concern if one links that with Clause 29(2) which covers a mass of purposes. That is why it is so unattractive. The provision covers ascertaining the cause of an accident, securing the health, safety and welfare of persons and other matters of that kind.

If we are right to believe that it is concerned only with protecting the confidentiality of sources, what is wrong with the provision is that there will be some circumstances in which the identity of the source will be a matter of public interest. For example, a middle manager in a nuclear power station reports that the pipes are cracking owing to metal fatigue and a week later there is a meltdown. The fact that it is the middle manager who has reported the matter is a matter of overwhelming public interest. That would be dealt with if our Amendment No. 154 were to be accepted. That is to say, there would be a harm test to ensure that there might be some circumstances in which the confidentiality of the source would be able to be disclosed without even reaching Clause 13.

The other vice which has been referred to by the noble Lord, Hunt of Wirral, is Clause 28(3). It states that the duty to confirm or deny is excluded in relation to not only criminal matters, but a wide range of non-criminal investigations as well. On our reading—we may he wrong—of Clause 28, it is much less controversial than we and the world outside have assumed. We believe that any defect in it can be dealt with by comparatively minor amendments. We do not think our amendments—apart from Amendment No. 154—really deal with that issue. The problem with Amendment No. 154 is that it covers criminal matters as well as civil matters. It may be that slightly different considerations would apply, although we think not. We believe that a harm test could be applied in both areas.

It is a pity that the Government have swept up into a single clause the core of criminal investigations and these wider consumer matters. I think that is what has given rise to much of the opposition to the amendments. Therefore, we support the spirit of the amendments that have been put down. We shall not be moving our own amendments tonight. But we are very anxious that the noble and learned Lord the Minister should clarify exactly what it is that this clause does and does not need.

10.45 p.m.

Lord Brennan

I apologise for taking up the time of the Committee so late in the evening, but this is a matter of great public concern. Many of us think that Clauses 28 and 29 are at the heart of the Bill. I do not wish to engage in a legal debate on the meaning of these clauses but to ask the Minister a plain series of questions by examples as to whether the Bill would allow access by the public to information about safety.

The Health and Safety Railway Inspectorate every week of every year investigates the state of our railways. It may or may not prosecute as a result of such investigations. That is not the point. The point is to acquire information that can be properly used by the public to maintain safety on the railways.

Paddington and Southall were both cases that involved long-term investigation by the HSE of failures in respect of each crash which might have been avoided had there been discovery and a public debate about these matters before they ever occurred. Under Clause 28 the use of the phrase "at any time", and the use of the word "may" lead to a prosecution, provide an exemption of far too wide a character. It may be that the commissioner will eventually decide that the public interest should permit disclosure of material from the HSE, but we do not want disclosure of this sort of material after disasters; we want the opportunity of finding out about it before they ever occur. In those circumstances, as my noble friend Lord Hunt confirmed, the Director-General of the HSE felt—she gave evidence before a committee of this House—that an exemption of this kind was not necessary.

In working for the Bar and trying to reform our profession in the light of the Lawrence inquiry, I had occasion many times to see Mr and Mrs Lawrence speak in public. I was gratified to see the award they received earlier this week in the European Parliament. After that terrible event, do we really want tile law to mean that Mr and Mrs Lawrence could never have found out about the delays which were so condemned by the Macpherson inquiry? I hope that the Government do not underestimate the strength of feeling on their own Benches about Clauses 28 and 29.

Lord Mackay of Ardbrecknish

I shall be extremely brief. I have some amendments in this group. In some ways they impose a lesser test than is imposed by the amendment of the noble and learned Lord, Lord Archer of Sandwell, but all of our amendments address the question of the length of time during which these clauses could be used by various authorities. I have nothing to add to what other noble Lords have said. In fact, if I may be presumptuous, I concur with my noble friends on this matter.

Lord Falconer of Thoroton

This is an important part of the Bill. Perhaps I may deal with what my noble and learned friend Lord Archer said. We are delighted to be putting a Freedom of Information Bil1 I on the statute book. During the course of the Committee stage I have made clear, in answer to a number of amendments proposed by the noble Lord, Lord Lester, the purpose of the Bill. We stick by that. We are prepared to go through in some detail the precise effects of all of the exemptions. It is right that the exemptions should be looked at with care. However, Clauses 28 and 29 have been slightly misinterpreted—perhaps significantly misinterpreted—by a number of noble Lords who have perfectly legitimate concerns. I very much hope that I can put those concerns to rest.

The noble Lord, Lord Lester, pointed the way to what the clauses mean. Clause 28(1) covers only criminal investigations. It is in the Bill because the two leading prosecuting authorities in this country—the DPP and the Serious Fraud Office—said that if we did not have an exemption in relation to criminal proceedings we would increase greatly their difficulties in getting witnesses to come forward and give statements in the course of criminal investigations. People have great anxiety about giving statements to the police or the Serious Fraud Office. They fear what may happen to them in relation to the giving of that evidence. They fear what may happen if there is an acquittal. They fear that what they said will come out. They fear that material they have given to the police in the course of their investigations which is not then used in the criminal proceedings might come out in some way or other. After acquittal they fear that the whole matter might be raked over again in the newspapers—their role and what they said.

The DPP and the Serious Fraud Office came to the House of Lords on Wednesday. There was an open meeting for all Peers. I know that Peers from the Liberal Democrat side and from our own side came. Unfortunately, no Conservative Peers were able to come. The DPP and the Serious Fraud Office expressed in detail their concerns on this issue. That is why they said they supported the exemption in relation to criminal proceedings.

Lord Lucas

I should like to clarify that this is the first that I or, I believe, any noble Lord on this side of the Committee, has heard about a meeting.

Lord Falconer of Thoroton

The Whips' Office was informed of it and I assumed that the Conservative Whips' Office would distribute the information to interested Peers.

Lord Henley

I hate to intervene on these occasions, but although the Whips' Office may have been told about the meeting, I most certainly was not informed and I am not sure that my own Whips' Office was told. I shall check on the matter. I am grateful to my noble friend Lord Lucas who has confirmed that he, too, was not told.

Lord Brennan

For the record, by the time I heard about the meeting, I had already undertaken a commitment elsewhere.

Lord Falconer of Thoroton

I am able to convey to the Committee what was said by the DPP and the Director of the Serious Fraud Office. They gave the same evidence to the Select Committee on Public Administration in the other place. Their comments form the reasoning behind The first clause. However, I must emphasise that this is restricted solely to criminal proceedings.

The noble Lord, Lord Hunt of Wirral, and my noble friend Lady Kennedy of The Shaws both made the legitimate point that consumer and community groups are concerned about their ability to secure information as regards inquiries that do not have anything to do with criminal proceedings, such as that in Reading chaired by my noble friend, or the examples cited of near misses, actions undertaken by the Environment Agency, and the many inquiries into care homes throughout the country.

As the noble Lord, Lord Lester, pointed out, Clause 28(2) does not provide any blanket exemption in relation to information resulting from such inquiries. All that it does is provide an exemption in respect of information provided in confidence. I shall use the phrase loosely, but this is in effect the "informer exemption". It has been put in place because, just as in criminal proceedings, it can be difficult to persuade people to give evidence because they fear the consequences. Therefore, in relation to matters such as near misses and care home inquiries, informers must be given a degree of protection. That is what is achieved by Clause 28(2). It is not aimed at any kind of blanket exemption as regards non-criminal investigations.

Perhaps I may turn to Clause 29(1). Putting aside our earlier debate on what precisely should comprise the prejudice test, the material emanating from non-criminal inquiries is not subject to a blanket or class exemption. It is subject to exemption only where disclosure would cause prejudice.

One category of case remains; namely, matters relating to the Health and Safety Executive. The executive undertakes two separate tasks. First, it investigates individuals with regard to whether they should be prosecuted. Secondly, it undertakes a whole range of activities not related to prosecutions. As regards material which might fall under the "informer" category, such material acquired by the HSE for non-criminal investigations is not subject to a blanket exemption. It is subject only to the prejudice test under Clause 29.

If the HSE undertakes a criminal investigation and then considers the possibility of instituting criminal proceedings, the Director-General of the Health and Safety Executive will be able to exercise her discretion as she thinks appropriate under Clause 13 of the Bill. She can balance the public interest in disclosure against the public interest in maintaining an exemption where criminal proceedings are concerned.

Although deeply felt concerns have been expressed on this, I believe that, on closer examination, the provisions do not have the effects so legitimately expressed by many noble Lords. Furthermore, the provisions both meet and attempt to deal with the points which have been raised.

Finally, I turn to deal with the point raised by the noble Lord, Lord Lester. He said that we still need to amend Clause 28(2) because it provides a blanket exemption in relation to identifying confidential sources. He asked about the situation where it might be relevant to say, "There are senior managers of a chemical plant who are repeatedly telling us that there are problems with the safety aspects of that chemical plant." Should you not be able to say, "Senior management sources—I am not going to name them—are making these complaints." Again, Clause 13 provides the answer to that.

In the light of what I have said I hope that noble Lords will reconsider their positions in relation to Clauses 28 and 29. I earnestly ask the Committee to accept that we have sought to deal with many of the points raised.

Lord Archer of Sandwell

I am grateful to the Members of the Committee who have participated in the debate and to my noble and learned friend for his careful exposition in reply. I suspect that the lateness of the hour has spared him a longer debate than might otherwise have taken place. Speaking for myself, I was less loquacious than I might have been on some other occasion.

Clearly, there is a difference in the arguments to be addressed to subsections (1) and (2). It may well be that between now and Report stage some of us may bring forward amendments which seek to elaborate on the difference. As to subsection (2), I agree with the noble Lord, Lord Lester, that it is difficult to see why one should require such a blanket exemption if its purpose is simply to protect whistle-blowers. But this may not be the moment to embark upon that.

In order that we may all have time to reflect, and bearing in mind that I moved the amendment on behalf of the noble Viscount, Lord Colville of Culross, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 142 to 156 not moved.]

Lord Bach

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at three minutes past eleven o'clock.