Freedom of Information Bill

HL Deb 24 October 2000 vol 618 cc273-316

9.12 p.m.

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

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

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

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Elton) in the Chair.]

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

9.15 p.m.

Lord Falconer of Thoroton moved Amendment No. 157: Page 15, line 42, leave out ("in the United Kingdom or elsewhere").

The noble and learned Lord said: In moving Amendment No. 157, I shall speak also to Amendment No. 158.

Amendment No. 158 would add both, proceedings on dealing summarily with a charge under the three service Acts referred to, and, proceedings before a court established by", specified sections of those Acts, to the definition of "criminal proceedings".

The amendments are necessary to deal with the provisions of the Armed Forces Discipline Act. That Act amends the three service Acts to provide for summary appeal courts, which will hear appeals from findings made and punishments awarded by commanding officers on dealing summarily with charges. The amendments ensure that such proceedings are covered by Clause 28.

I should like to take this opportunity to say a few words about Clause 28(1)(b). In our discussions last Thursday, I made the point that non-criminal investigations into safety matters or accidents, for example, were not covered by the class exemption in Clause 28. That is, of course, correct. However, subsection (1)(b) includes investigations by an authority into matters which may lead to a decision being taken by that authority to institute criminal proceedings, even if no such proceedings are eventually taken. To cite two examples: accident investigations where criminal proceedings are a possible outcome, or environmental health reports into compliance with food safety, would fall within this subsection.

Concern has been expressed that this would mean that the public may be denied information about serious health issues or the causes of accidents, even where criminal proceedings are not taken. I do not believe that this will be the case as the public interest test in new Clause 2 of the Bill would come into play. If there were no criminal prosecution in the case, I am sure that the public interest in knowing of health risks or the causes of accidents would outweigh the public interest in maintaining exemption. I am satisfied that the Bill will provide the correct outcome in such cases. But, in the spirit of the debate on this clause, I shall reflect further on this point.

While the Bill was in Committee in another place on Clause 28, a list of public authorities with a duty to conduct prosecutions was placed in the House of Commons Library. I shall place a similar list in the Library here.

Returning to this group of amendments, Amendment No. 157 would remove the term, in the United Kingdom or elsewhere", from the part of the definition which deals with courts martial. It is clear from the context that proceedings cannot be limited to those in the United Kingdom, and so the words are unnecessary. I beg to move.

Lord Falconer of Thoroton moved Amendment No. 158: Page 15, line 46, at end insert— ("() proceedings on dealing summarily with a charge under the Army Act 1955 or the Air Force Act 1955 or on summary trial under the Naval Discipline Act 1957, () proceedings before a court established by section 83ZA of the Army Act 1955, section 83ZA of the Air Force Act 1955 or section 52FF of the Naval Discipline Act 1957 (summary appeal courts),").

Clause 28, as amended, agreed to.

Clause 29 [Law enforcement]:

[Amendments Nos. 159 to 163 not moved.]

Clause 29 agreed to.

Clause 30 [Court records, etc.]:

[Amendments Nos. 164 and 165 not moved.]

Clause 30 agreed to.

Clause 31 [Audit functions]:

[Amendment No. 166 not moved.]

[Amendment No. 166A had been withdrawn from the Marshalled List.]

Clause 31 agreed to.

Clause 32 agreed to.

Clause 33 [Formulation of government policy, etc.]:

Lord Mackay of Ardbrecknish moved Amendment No. 167: Page 18, line 34, at beginning insert ("Subject to subsection (1A),").

The noble Lord said: In moving Amendment No. 167, I shall speak also to Amendments Nos. 169 to 171 and 175.

At the moment the Bill makes provision for a class exemption on policy formulation. This means that any information that falls within this category is covered by the exemption whether or not its release would be harmful. As the decision on whether exempt information should be released in the public interest is ultimately made by the public authority or the Minister, this exemption would mean that access to this kind of information could be severely limited.

Indeed, Clause 33 is a sweeping exemption for all information relating to the formulation of any policy. It is not restricted to Civil Service advice but includes the background information used in preparing policy, including the underlying facts and their analysis. There will be no right to know about purely descriptive reports of existing practices, research reports, evidence of health hazards, assumptions about wage or inflation levels used in calculating costs, studies of overseas practices, consultants' findings or supporting data showing whether official assertions are realistic or not. Departments would not have to confirm even whether any such information existed. Any request for information about the justification for a government policy could be refused under this exemption.

In contrast, the openness code, to which I have referred on previous occasions, introduced by the Conservative government in 1994, contains three relevant positions. It requires departments to publish an analysis of the facts underlying policy decisions and proposals once decisions are announced; it allows policy-related material to be held only if disclosure would harm the frankness and candour of internal discussion; and it requires information, the disclosure of which could harm frank discussion, to be disclosed if that harm is outweighed by the public interest in openness. However, under the Bill, there is no requirement to publish the facts and analysis behind government decisions. The relevant exemption contains no test of harm. The sole basis for any disclosure will be the Bill's public interest test. Under the code, this is a further obstacle to the withholding of information. Under the Bill, it may allow objections to be raised to the most elementary disclosure. These amendments introduce a harm test, changing the exemption from a class exemption to a context exemption. This means that information would be covered by the exemption only if it was proved that release would cause harm.

It seems surprising that the Government are backing away from the code of practice and from their own White Paper. But that is usual when we are discussing this Bill. It gives the Minister carte blanche to deny access to information that is innocuous and uncontroversial. It could also mean that information that is currently available would actually be made secret. That is unacceptable. With this Bill the Government are taking away rights to information rather than ensuring them. I have no doubt that other Members of the Committee will wish to speak to this important series of amendments. I beg to move.

Lord Archer of Sandwell

The comments of the noble Lord were remarkable in their moderation in relation to Clause 33.

Lord Mackay of Ardbrecknish

That is probably because I have been speaking on the political parties Bill for the past six hours!

Lord Archer of Sandwell

My noble and learned friend must be thankful for small mercies!

In its present form, the clause falls foul of virtually every principle in the book. It is not wholly clear why the various amendments relating to Clause 33 are not grouped together. It fails as a package, and addressing its defects one at a time—as we are condemned to do—is rather like trying to remove a pile of dead leaves with chopsticks.

Clause 33 has the rubric: Formulation of government policy, etc. The exemption is of a number of categories. The one that possibly attracts the greatest criticism is that contained in subsection (1)(a). There is room for argument about the others, but they are marginal to what is at issue. Subsection (1)(a) sits rather oddly with the other paragraphs, (b) to (d). They are about the kinds of information which relate to the formulation of policy. But paragraph (a) relates to all information regarding policy. It is a blanket exemption, as the noble Lord said—and in three ways.

First, there is no distinction as to the source of the information, whether it is information about what happened in the department during the policy discussions, or information about the state of affairs in the industry, area or social situation which is the subject of the policy. Any information, whatever its nature or source, is within the net if it is held by a government department and if it relates to the formulation or development of policy. A letter to a Minister from a non-governmental organisation or a trade association containing information about the need for a certain course of action, or asking the Minister to take the action, all fall within the blanket exemption.

Secondly, as the noble Lord, Lord Mackay, pointed out, there is no harm test. Information is exempt whether or not its publication would damage the policy-making process.

Thirdly, there is no attempt to distinguish between the kinds of information. There is a whole history of distinctions between information about recommendations and factual information, statistics, analysis and all other forms of information, as we shall discuss shortly. So I am slightly surprised that the criticisms are not grouped for the purpose of the debate, because they are very much a package.

If the distinction is made about the kind of information, it is easier to discuss whether harm will result from its publication. However, it seems that we are to debate the criticisms in isolation. For the present, we are debating the absence of a harm test. This is a long way from the White Paper, which expressly said: We are prepared to expose government information at all levels to freedom of information legislation". It went on to add that information about policy discussions would be disclosed, subject to a harm test.

In our report, the Select Committee addressed the whole principle of providing exemptions by category, instead of by reference to the damage that would follow from the disclosure. We pointed out that this is a retreat from the White Paper, and even, as the noble Lord pointed out, from the existing code. If the Government really intend to let go of nurse's hand and stride out into a world of openness and transparency, this clause is their opportunity to send out that signal.

Lord Norton of Louth

I rise to reinforce the points made by my noble friend and the noble and learned Lord, Lord Archer of Sandwell. Rather like the noble and learned Lord, I am at a loss to understand why all the amendments under this clause have not been grouped together and why they have been disaggregated in this way. It strikes me that there is a clear and logical connection between them and, therefore, it would be appropriate to speak to them at the same time.

I wish to speak to Amendment No. 169. As the noble and learned Lord said, the present clause moves away from both the White Paper and the existing code of practice, which I understand has been working rather well. Therefore, can the Minister tell us to what extent the present clause is an improvement on the situation created under the code? In what way does the clause improve it? As I read it, the clause actually represents a step backwards from the code. Amendment No. 172, tabled in the name of the Minister, does not bring the situation up to the present level.

As far as I can see, the code appears to have worked reasonably well. However, if I am wrong, perhaps the Minister can explain in what way it is not working. As has been mentioned, this is a class exemption; the only test will be the public interest test. I should have thought that there is a particular problem here in that respect. If you raise that, it will take some time if you appeal the public interest test. Therefore, it may perhaps be some way down the road before you receive the information, by which time the decision may have been taken and the material will not be of as much use as it would have been if it had been available at the time it was researched. I cannot see how the clause represents an improvement; I believe that it represents a step backwards. I completely agree with what has been said by noble friend and the noble and learned Lord, Lord Archer of Sandwell.

Lord Goodhart

I shall speak very briefly on this issue. I support the remarks made by previous speakers. I, too, echo the words of the noble and learned Lord, Lord Archer, and the noble Lord, Lord Norton of Louth, that it would have been more appropriate to discuss all the amendments to Clause 33 together, because they make up a package. Indeed, I shall be brief on this group because I shall have rather more to say on the next group of amendments dealing with factual information.

It is quite clear that Clause 33 as it now stands is one of the most objectionable provisions left in the Bill. It plainly requires a harm test to make it acceptable, as well as other changes that we shall be considering shortly. It seems to me that this represents a step backwards, both from the code and from the White Paper. Therefore, I very much hope that the Government will see their way to changing their view on the subject of these amendments.

Lord Williamson of Horton

We are dealing here with a most important point, which deals specifically with the class exemption in Clause 33 for information held by a government department, if it relates to the formulation or the development of government policy. It cannot be disputed that this is a very wide exemption. Indeed, it has been described by the Campaign for Freedom of Information as, "a gigantic class exemption" because, as the Bill currently stands, it is not limited to Civil Service advice but covers all information relating to policy.

I understand that there is a safety valve in that under Clause 13(4)(b), the public authority will make the information available if it decides that the public interest, in disclosing the information, outweighs the public interest in maintaining the exemption in question. Clause 13(5) requires the public authority to, have regard to the public interest in communicating to the applicant factual information which has been used, or is intended to be used, to provide an informed background to decision-taking". I should like to see the class exemption in Clause 33 more restricted so that more information would be available to the public. I believe that my views are rather liberal and perhaps even more so than those of the Liberal Democrats, although my views are not more democratic. I do not wish to go into the general point about exemption as a whole. In such a contest between David and Goliath, Goliath is odds-on to win.

I return to the amendments themselves and follow the grouping, which has been the subject of some complaint. The exemption amendments deal with the harm or prejudice test. The question is whether or not we should have a harm test. We should have one. I believe that it can be operated successfully. Of the various amendments in the Marshalled List from the noble Lord. Lord Mackay of Ardbrecknish, I favour a harm test which relates to the phrase, would, or would be likely to, prejudice". I do not know how one would build that in from the present Amendment No. 170. I prefer that to the harm test which states that it, would harm the frankness and candour of … discussion". I make that point because I believe that it would be easier to operate such a system if it were based on the word "prejudice" rather than on "frankness and candour" which seems to me to leave a certain amount of room for manoeuvre and which could be exploited in the use of that amended exemption.

Of the proposed amendments, I assume that they have been tabled on the same principle used in the football pools; namely, perm three of any four. I would perm them in favour of those which relate to the harm test based on prejudice in one way or another. I am sure that we shall return shortly to the other question as to whether there will be a specific arrangement for factual material, but I leave that to the second group of amendments.

9.30 p.m.

Lord Lucas

Surely this is the absolute heart of the Bill. Here we have a Government who say that they want much more openness in public affairs, but when we reach the part of the Bill where their own affairs are concerned, they are quite clearly determined to stay rooted to the spot and even to go backwards. It is all part of the code of practice, particularly the second paragraph, which is a wonderful piece of "Sir Humphreyism", expressing in every word the image of moving forward, but clearly remaining absolutely where the Government stand at the moment and putting off the possibility of any change into the far distant future.

If the Government wish to be taken seriously on this Bill and want the support of their own Back-Benchers, let alone that of Members of the Committee on these Benches, they must show that they are prepared to lead by example. We must have recognition by the Government that freedom of information means greater openness. In the operation of this part of the Bill, it must be clear that there is the prospect of getting better information, certainly information on which the Government are basing their decisions and government decisions generally.

It is a subject to which we shall return to as a House on Thursday when we debate the BSE report. We see from that the consequences of the Government remaining closed to the inspection of so much of their decision-making and the basis on which they made their decisions was not made available to the public. Ministers must have access to the information. Surely, they must see from that that it is essential for greater openness to flow from this Bill.

Certainly this Chamber understands that if we do nothing else with the Bill, that is what we must achieve. We must make government information more open and more available so that the decisions which government take are better informed and more accountable. There are, of course, various ways of doing this. It may be that a harm test in some form is part of it. It may be that the amendments we are to debate in the next group form part of it. But one way or another we must move; otherwise, we are leaving a Bill in which the lead horse is facing the wrong direction. That really will not do.

Lord Armstrong of Ilminster

I intervene only to say that I think that the clause as it stands is about as good as you can get it in this respect. I think that phrases such as, harm the frankness and candour of internal discussion leave a great deal too much open to argument and doubt. I remain strongly of the view which I expressed before in debates on the Bill; namely, that it is not possible to conduct government business as it were in a goldfish bowl. Therefore I support the clause as drafted.

Lord Brennan

Many on this side of the Committee have approached the Bill in the hope that it would improve the level of public knowledge on matters concerning their health and safety. It is in that arena that I share the concern expressed by many of my noble friends about subsection (1)(a). If I understand it correctly, it means that there will be no right to know about the purely descriptive reports of existing practice, to find out about research reports or to gain access to evidence on health hazards and therefore no means of testing the validity of government and Civil Service conclusions on matters concerning the safety and health of the public. I invite the Minister either on this occasion or at Report stage to indicate in what regards the existing code under which these 'natters are open has not worked. If it has worked, why change it?

I invite the Government to note—furnished as I am with information provided by the Campaign for Freedom of Information—the paradoxes that are likely to arise under subsection (1)(a). The information I mentioned gives three examples which I believe merit debate in the Chamber. First, since the Government came to office they have continued to publish the minutes of monthly meetings between the Chancellor of the Exchequer and the Bank of England. One cannot imagine any more sensitive area of economic and financial information which is regularly dispersed to the public without apparent damage. The other day we discussed the potential differences that are likely to arise between the practice of this Chamber under this Bill and the practices in Scotland and Wales. I note that the Welsh Assembly publishes its cabinet minutes six weeks after the discussions take place without editing them. Has there been damage? If there has, let us know what it is. If there has not, why should subsection (1)(a) be so wide-ranging?

I return to my opening remarks on safety. The Food Standards Agency has been encouraged to publish its advice to Ministers and has been given express statutory authority to do so. That is to be commended. I suggest that the same spirit ought to influence government. If we should know the advice of the Food Standards Agency, why should we not know what the Government propose in response to that agency? On the issues of health and safety the Bill must be seen to serve a new purpose.

Lord Borrie

I apologise to the Committee for not being present at the beginning of the debate on the amendment. I broadly support the amendment of the noble Lord, Lord Mackay of Ardbrecknish.

I am concerned that the assumption underlying Clause 33 as drafted is that somehow it is invariably against the public interest for information as to the formulation of government policy to be disclosed to the public. I suggest that that disclosure of such information can often be desirable especially to enable consultation with the public to take place and thereby to improve the quality of government decision making.

Information as to the formulation of government policy should be exempted from disclosure only if harm can be demonstrated to the frankness and candour of internal discussion, as Amendment No. 169 in the name of the noble Lord, Lord Mackay, proposes.

I illustrate my argument by reference to a High Court decision in April this year. A charitable body, Public Concern at Work, of which I am a patron, was successful in obtaining judgment which entitled the public and this charity access to a summary or copy of claims made under the Public Interest Disclosure Act so that it could monitor the legislation of which it had been the principal sponsor. The High Court ordered that the public should have access to such information, stressing that open justice should apply as much to employment tribunals as it does to the ordinary courts. In other words, litigation should be subject to critical scrutiny.

Three months later, in July (running into August) this year, the Government made regulations to override the High Court decision and remove the public's right to know the gist of the decisions of the employment tribunals. There was no consultation before this policy was formulated. The Minister's response to expressions of concern from the charity gave three reasons for the regulations overturning the High Court decisions. The three reasons for overriding the decision were respectively that the arguments were factually wrong; legally wrong; and disregarded the High Court's view as to the merits of open justice.

I suggest that had there been discussion involving not just the charity with which I am concerned but other interested bodies—trade unions, the CBI and so on—those errors could have been readily corrected. In the scale of things, my illustration is a fairly minor matter of policy. However, I put it forward because it demonstrates how poorly constructed formulation of policy made in secret during the parliamentary Recess may involve a quality of decision making which leaves much to be desired; and I suggest that it was worse because policy was formulated without any disclosure of information or consultation.

Lord Falconer of Thoroton

This is an important clause in the Bill. It has been the subject of considerable debate. The Government believe strongly that information relating to the formulation of government policy, ministerial communications, the operation of ministerial private offices and advice by the Law Officers must be properly protected. The Government believe that a careful balance between the rights of access to information, privacy, confidentiality and the Government's need for room to think and plan needs to be struck.

I should make it clear that the purpose of this Bill is to increase openness to Government. As I made clear at the beginning of the Committee stage, what is required is a culture change, and this legislation is an important contributor to the culture change. I should also make clear that many people on both sides of the debate consider that it is appropriate that policy making should not take place in a goldfish bowl: that there should be a process which allows Ministers, public authorities and civil servants to exchange views in a way that they feel will be private to give them that space to think and make decisions.

The question is: how does one achieve that appropriate space consistent with the desire for greater openness and greater freedom of information? That is the issue that we addressed in this Bill. We conceived that the best way to do that was by Clause 33 providing a class exemption in relation to the interests identified in Clause 33(1) but also with the public interest test in relation to what is now Clause 2. In that way, when you are considering what to disclose you do not have to make fine distinctions about what is a fact and what is an opinion. That will be covered by the exemption, as long as it relates to policy formulation or any of the other interests in Clause 33 (1). But then you balance the public interest in disclosure against the public interest in maintaining the exemption. The test for the public authority is quite simple when it is deciding whether or not to disclose under Clause 2. Is the public interest in knowing this information greater than the need to preserve the exemption to provide that space in which Government can take decisions?

I do not think that is very far from an approach that most noble Lords would regard as an acceptable approach. It is clear, it avoids fine legal distinctions and it comes to a result we would all regard as desirable. Amendment No. 170 would introduce a harm test in place of the present class exemption in Clause 33. That introduction would mean that the difficult questions, the uncomfortable options and the unthinkable scenarios would not be debated as frequently or as clearly. Governance would suffer. That is why a class exemption rather than a harm test is the right way to achieve a balance for good and open government.

This does not mean matters on internal discussions about, say, national emergencies. It is conceivable that a government receives from a pressure group a proposal for a policy change that would be quite unacceptable for whatever reason. It would still be necessary for officials, including possibly law officers, to set down a reasoned analysis of the effects of the proposal and the reasons for rejecting it. It would cause unwarranted public alarm simply to learn that such a proposal was under consideration, even though the government had concluded at an early stage that there was no prospect of its becoming government policy.

Amendments Nos. 167, 171 and 175, to which the noble Lord, Lord Mackay, has also spoken, seek to move from a class exemption to one based on a harm test, although in this case the test he proposes is one of substantial prejudice to the formulation or effective implementation of present or future government policy. Within that overall prescription, this amendment would provide separately that the test of substantial prejudice would itself become relevant only if the disclosure of information relating to ministerial communications would "materially detriment the frankness and candour of those communications".

At the risk of repeating myself, let me say again that the Government believe that the disclosure of certain types of information, such as ministerial communications, Cabinet papers and minutes would always he likely to prejudice the effective conduct of public affairs. That is why the Bill provides a class exemption for the interests set out in Clause 33(1). I will not go over the arguments about substantial prejudice because we have discussed them already.

I turn now to Amendment No. 169, which proposes a slightly different approach although it is again linked to a harm test. It would substitute for the present class exemption an exemption in respect of internal discussions, which would include, proceedings of Cabinets and Cabinet committees; internal opinion … projections and assumptions relating to internal policy analysis … [and] confidential communications between departments". Perhaps I may say just a word about the code of practice and compare it with the Freedom of Information Bill. The code of practice is discretionary; it is a policy statement. It creates no statutory rights. Its enforcement mechanism is the ombudsman. The ombudsman's views are not binding but the commissioner's decisions will be. The Bill's coverage is vastly wider than the code. The code refers only to central government departments, whereas the Bill covers all public authorities.

Most importantly of all, the code of practice is underused. It is not regarded as a mechanism for providing freedom of information as the Bill will be, if, as we expect, it is accompanied by a culture change. The publicity given to the Bill will ensure that the public are aware of their rights.

Amendment No. 169 would remove the specific provisions currently proposed to protect the Law Officers' advice and the operations of ministerial private offices. That would lead to less effective and efficient development and delivery of government business, because it would restrict the free expression of views at the policy formulation stage without significantly increasing the amount or quality of the information that could be released into the public domain.

I earnestly ask your Lordships to think about what I have said, just as I will think about what your Lordships have said. The Bill needs to be considered in the context of the whole scheme, not just in relation to Clause 33.

If I may, I shall leave the extent to which facts should be covered until the next group of amendments, where it will fit in more easily. I ask the noble Lord to withdraw the amendment.

9.45p.m.

Lord Brennan

I should like to ask my noble and learned friend a question that tests Section 1A by example. Let us suppose that the forthcoming report on the BSE inquiry concludes that government policy was wrong and caused or contributed to the damage done to the beef industry, let alone the potential effects on human life. Many of us are concerned that, should such an event recur under the Bill the public would have no means of finding out about relevant policy considerations until the disastrous events had happened. Can the Minister reassure us that such fears are not justified?

Lord Falconer of Thoroton

I do not know what the BSE inquiry report will say. Under the Bill, reports about BSE given to Ministers would be covered by the exemption under Clause 33, but it would then be for the Minister or the relevant public authority to decide whether the balance of public interest lay in disclosure or in maintaining the exemption. Ministers might get that wrong or right, depending on how it looked some years later with the benefit of hindsight, but it is worth emphasising that, if there was a harm test, it would still be for the public authority to ask itself whether producing the information caused harm. That is the choice. Under our approach there is no need to worry whether the information is fact or opinion. The relevant body simply looks to see whether the information is covered by the exemption and then applies the public interest test. That is a more straightforward and direct way of dealing with the problem.

That gives me an opportunity to deal with the three examples that the noble Lord, Lord Brennan, raised in his speech, which I omitted to deal with. He referred to meetings between the Chancellor and the Bank of England. They have been replaced by the Monetary Policy Committee, which does not involve the Chancellor, because the Bank of England is now responsible for interest rate policy. The publication of the minutes is provided by statute. There is also a provision for withholding any information if prejudice would be caused to certain matters.

Reports on safety matters would probably not be caught by Clause 33, because they would not be in relation to the formulation of policy. They would be dealt with elsewhere. The Food Standards Agency has published advice that it has given to Ministers from time to time. Under the Bill it might well be covered by an exemption, but, assuming that no other exemption applied, it would be for the agency to decide whether the Clause 13 balancing act should lead to publication.

Lord Goodhart

Before the noble and learned Lord sits down again, perhaps I may ask him a question. If the withholding of information that is exempt under Clause 33 causes no harm, then if disclosure of that information is sought, the withholding of the information would almost certainly fail the balancing test under the new Clause 2. In that case, what is the real objection to including a harm test in the exemption itself?

Lord Falconer of Thoroton

As presently drafted, Clause 33 provides certainty as to what is covered by the exemption in relation to the public interest that is dealt with by the balancing under Clause 13.

Lord Lucas

The Minister began his remarks by saying that he was aiming to create a culture of greater openness. He then ended by saying, "But not for us; only for the rest of the public service. We shall disclose rather less than we have to under the code at the moment". I do not believe that the rest of us consider that to be acceptable.

There are various ways to deal with the issue and we have discussed some of them before. Clearly, we must rebalance the public interest test so that it is not phrased as it is at present but so that the interest in withholding information outweighs the interest in releasing it. Under those circumstances, I believe that there is a strong argument for a duty to assist—which would also help in this matter—and, indeed, for a purpose clause.

However, I would much rather attack the problem at its root in this clause. There is a strong argument for a harm test. I believe that that returns us to the point where we should be, which is to make the individual official who is faced with making a decision under the Bill consider realistically whether there is an argument for withholding the information rather than to allow him to pass the buck downstream. As my noble friend Lord Norton of Louth said, downstream may be a long way—weeks or even months—during which time the buck may be passed, the whole matter may be diffused through the passage of time and government will be allowed time to fudge, time to change and time to make the matter irrelevant, rather than facing up to the need to be open at the moment that the decision is made. I believe that the Government must take their own medicine in this clause and I hope that the Minister will think again.

Lord Falconer of Thoroton

I apologise for interrupting, but I am not sure that I understand the point made by the noble Lord in relation to timing. An application for information under the Bill could be made at any time; for example, precisely at the time a decision was made in respect of which information was sought. That would require the relevant public authority or Minister to consider whether or not it was covered by an exemption and then, if it was covered by an exemption which was not an absolute exemption, including Clause 33, whether or not to exercise the discretion under what is now Clause 2. Therefore, I am not quite clear to what the noble Lord refers when he says that time can pass.

Lord Lucas

I hope that I understood my noble friend Lord Norton aright when I agreed with him that presently there is no time limit on consideration of the public interest test and that that can be spun out indefinitely under the terms of the Bill as it is now.

Lord Falconer of Thoroton

The public authority is obliged to consider the question of whether or not to exercise the discretion within a reasonable time. That can be policed by the information commissioner. The idea that that will lead, as the noble Lord, Lord Norton, said, to years going by is, with respect, fanciful.

Lord Mackay of Ardbrecknish

We have had an interesting start to this debate. I believe that I heard the noble Lord, Lord Brennan, asking the question: has the code worked? I believe that he meant: has it not worked, thus forcing government to divulge information that they would rather not have done? Perhaps I slightly misunderstood the nuance in his question. The Minister did not refer to that at all. I believe that the logic of the question raised by the noble Lord, Lord Brennan, was: if it has worked, why weaken it?

The Government must have started by considering that the code was all right and they wished to strengthen it. In the White Paper they envisaged something much closer to the code than the present Bill. The White Paper rejected a class exemption for policy material, stating that the Government were prepared to expose government information to FOI legislation at all levels. However, most exemptions were to be based on a test of whether disclosure would cause substantial harm. The case for a lower threshold in that area was accepted. Information about policy would be available subject to a test of simple harm; that is, would disclosure of the information cause harm?

The Government find themselves out of step with what is being proposed in Scotland, which I find interesting. I suppose one must add the caveat that in Scotland it is still just a White Paper. We have not yet seen a Scottish Bill. So maybe some pressure will be applied to the Scottish Executive from down here to ensure that it withdraws from its White Paper in the same way that the Government have withdrawn from theirs.

The noble and learned Lord, Lord Falconer, gives robust defences of his position. He started off by saying that the Government were in favour of increased openness. Does it not worry the noble and learned Lord that no one in the Committee seems to believe him? Members of the Committee, with one exception, seem to think that the Government are not going down the road of increased openness. As we contemplate what we should do to tackle this clause, and what amendments we should table on Report, perhaps the Minister might contemplate why he is not receiving support for what he believes to be increased openness and why he is being met with a mild degree of scepticism. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10 p.m.

Lord Falconer of Thoroton moved Amendment No. 168: Page 18, line 34, after ("department") insert ("or by the National Assembly for Wales").

[Amendments Nos. 169 to 171 not moved.]

Lord Falconer of Thoroton moved Amendment No. 172: Page 18, line 40, at end insert— ("(1A) Once a decision as to government policy has been taken, any statistical information used to provide an informed background to the taking of the decision is not to be regarded—

1. (a) for the purposes of subsection (1)(a), as relating to the formulation or development of government policy, or
2. (b) for the purposes of subsection (1)(b), as relating to Ministerial communications.").

The noble and learned Lord said: The Government have listened to the points put forward concerning statistical information and have accepted that greater openness can he achieved in this area. Amendments have consequently been tabled to address that.

The net effect of Amendment No. 172 would be that such statistical information would then fall within the prejudice test exemption contained in Clause 34. Within Clause 34, there is provision that any information to which the clause applies is exempt information if, in the reasonable opinion of the relevant qualified person, its disclosure would, or would be likely to, prejudice the matters set out in subsection (2). However, Amendment No. 191 goes on to provide that the test in relation to statistical information would be a simple prejudice test. In other words, the amendment would remove the words, in the reasonable opinion of a qualified person from the exercise of the exemption under Clause 34.

The amendment is necessary in order to ensure that the information commissioner is able to review a decision not to disclose statistical information taken by a public authority and is not simply limited to whether the qualified person has acted reasonably in determining not to release the statistical information. That underlines our commitment to openness and as such is surely to be welcomed by Members of the Committee.

Perhaps I may also reassure the Committee that in relation to statistical and other factual information which still falls within Clause 33 and that which falls within Clause 34, the public interest test will apply. Thus, any statistical or factual information which should be disclosed in the public interest will be disclosed under the Bill.

With the leave of the Committee, I shall not speak to the other amendments in this group, which are to be moved by other noble Lords, until noble Lords have spoken. I beg to move.

Lord Lucas moved, as an amendment to Amendment No. 172, Amendment No. 173: Line 3, leave out ("statistical") and insert ("factual").

The noble Lord said: I do not intend to address my amendments at this stage. I should prefer to wait for the Government to answer them. I believe that they are fairly clear and simple in what they seek to achieve. I should like first to listen to the arguments on other amendments in this grouping before taking up the time of the Committee with my ideas. I beg to move.

Lord Archer of Sandwell

We have just debated the first of the shortcomings of Clause 33: the fact that it is not subject to a harm test. Now we are discussing the second shortcoming. As originally drafted, it made no attempt to distinguish between the various kinds of information.

My noble and learned friend has at last made an attempt to make some distinction. He said in fact that he had listened to representations which had been made about statistical information. The representations which I heard being made were not specifically addressed to statistical information. But my noble and learned friend says that he is prepared to release statistical information from the blanket of silence, but it is confined, first, to statistical information; and, secondly, even that only after the decision has been taken.

I am sure that we are all grateful for my noble and learned friend's attempt to move the colossus from its trench. But he cannot really be surprised if we do not break into a celebration dance. The minimum step we had hoped to see in the direction of openness was a distinction between policy advice and factual information.

During our last debate my noble and learned friend said, "Do not make a distinction between advice and factual information; just apply the 'public interest' test across the board". But that is not what the Bill does. It exempts by categories. That has been one of our complaints. If my noble and learned friend agreed that all information should be subject to a public interest test, we might be in the market for a deal. But he does not. He subjects it all to category exemptions and then, when we come to a category where he does not want to make that distinction, he says, "Do not bother about the categories. Just apply the public interest test".

If the Government believe that the distinction is difficult to make in practice, they reached that conclusion at a comparatively late stage because they made that distinction themselves in Clause 13(5). That is why I set down Amendment No. 174; the distinction is taken from the Government's drafting.

As long ago as 1977, the Croham directive instructed officials to make that distinction. So far as I am aware, it seems to have been implemented without difficulty. The noble Lord, Lord Butler, gave evidence in July last year to the pre-legislation Select Committee on this Bill. He said, when we were coming up to the 1997 election, knowing what the government policy was in this matter, my senior colleagues and I gave some thought to how we could regularly structure submissions to Ministers in a way that would enable us easily to separate the background which was publishable from, as it were, the subjective advice which was confidential. It would take a bit of training and changing practice to do that, but I think that people could very readily adapt to that". The previous government, in 1994, introduced the openness code which has already been the subject of debate. It required departments to publish facts and the analysis of them which led to the policy decision. It said that information relating to the policy decision was to be published, subject to the harm test. The noble Lord, Lord Burns, told the Public Administration Committee on 22nd June 1999, When I was preparing for the election and thinking about these issues, I had expected a bigger shift in that direction than we have, in fact, seen". Amendment No. 175A was originally going to be tabled by the noble Lord, Lord Burns. I tabled it for two reasons. The first is that the noble Lord, for reasons of which we are all aware, was not able to do so; the second is that it represents an attempt to bring together the various criticisms of this clause. First, it is not clear why factual information should be withheld. Secondly, it is not clear why there should be secrecy as to the analysis which was made of factual information. The Irish Freedom of Information Act excludes not only factual information, but also the analysis and, so far as I am aware, they have not encountered problems about that. Thirdly, Amendment No. 175A provides that anything else within the category should be subject to the harm test.

I understand the arguments about belt and braces but this measure adds a bathrobe and curtain, too. I hope that my noble and learned friend will think again about the whole structure of the clause.

Lord Goodhart

Having heard the noble and learned Lord, Lord Falconer, addressing a meeting of the Bar about 10 days ago when he sought to defend the Government's proposals on legal aid, and having heard him in your Lordships' House defending the Dome, I have a feeling that whenever the Government want to defend the indefensible they send for the noble and learned Lord. I believe that this is such an occasion.

The noble and learned Lord had no support whatever from those on the Benches behind him. Indeed, the noble and learned Lord, Lord Archer, and the noble Lords, Lord Borrie and Lord Brennan, made extremely effective speeches the other way. The only support he received came from the noble Lord, Lord Armstrong of Ilminster, on the Cross Benches. When the noble Lord was speaking I thought for a moment that I was hearing the voice of Lord Appleby, whom I believe was elevated to your Lordships' House a few years ago in the resignation honours of Sir Jim Hacker! We on these Benches accept that advice, position papers and so forth written by civil servants or other advisers should not be disclosed as of right. We accept that they should be exempt, subject to a harm test. But we want the factual background information to be made available without an exemption.

In their Amendment No. 172, the Government have stated that they will release statistical information. But that gives the whole game away because there is no logical distinction between statistical information and factual information. Statistics are simply a collection of facts. Saying that general statistical information can be released but that specific facts cannot seems to me absurd.

Perhaps I may take an example with which everyone will be familiar; the Hatfield rail accident. The number of broken rails discovered on the rail track in this country during the previous 12 months is a statistic. The discovery of a single broken rail at the site of the crash is not a statistic but a fact. As it happens, those matters are already in the public domain but one could well imagine similar circumstances in which that information was not currently in the public domain. If the facts, not merely the statistics, on which the Government rely to formulate their policy are not protected by other exemptions, we believe that they should be available to the public.

As was said during our debate on the previous group, the Bill is far more restrictive than the existing non-statutory code of practice. That code requires departments to publish facts and the analysis of facts which the Government consider relevant and important in framing major policy proposals, admittedly after the decisions have been taken, subject to a harm test and the balancing exercise. As the ombudsman—the Parliamentary Commissioner for Administration who administers the code—said, the code is intended to protect advice not factual information.

Irish freedom of information legislation specifically excludes any exemption for factual and statistical information and analysis of that information. Proposals for a freedom of information Bill in Scotland do not give an exemption to factual information. Even with the concession which the Government have made in Amendment No. 172, we are concerned with the absence of any right to obtain statistical information before the Government's decision is taken. That deprives a person who requests the information of the ability to use it when it is likely to be of use to him or her. For example, a person who makes the request may believe that the statutory evidence is misleading and incomplete and may want to refer the Government to further evidence of which they may be unaware, but there is no way in which he or she can do that if there is no access to the information before the decision is made.

The Government's proposals mean that factual information which would not be protected under any other clause would be exempt merely because it was used as background information in policy-making. The Government's proposals draw an illogical and indefensible distinction between one kind of factual information—statistics—and other kinds. I believe that this group of amendments will be as unpopular as the previous one. There are a number of alternative amendments from which to choose and, having seen them, we strongly support Amendment No. 175A in the name of the noble and learned Lord, Lord Archer.

10.15 p.m.

Lord Williamson of Horton

I do not return to the question of the harm test, although it arises on Amendment No. 175A. However, I should like to intervene on the choice of amendments in the current grouping that is before the Committee. One may choose the exclusion of statistical information from the class exemption once a decision on government policy has been taken; or the exclusion of factual information, which is the amendment in the name of the noble Lord, Lord Lucas; or the exclusion of factual information and analysis of that information without the condition about timing.

I believe that the government amendment should be welcomed, perhaps mildly, since it improves the position in comparison with the Bill as presented. My mother always taught me to be thankful for small mercies. There is a suggestion that we should deal with factual rather than statistical information. There might be some contention in this matter. Generally speaking, however, I believe that that formulation can operate. It is possible to differentiate factual information. Leaving aside for the moment the harm test, on balance I also support the amendment moved by the noble and learned Lord, Lord Archer. It is possible to operate that provision which would be more in keeping with freedom of information.

Among these amendments one sees the expression "in the reasonable opinion of a qualified person". That is deleted from the final amendment in the group, but we may return to that later. I am tempted to point out that this evening there are two Members of the Committee sitting on the Cross Benches who may be considered to be qualified persons but they disagree on a number of points.

Baroness Whitaker

I support Amendment No. 174 for three reasons. In so doing, I welcome the amendment of the Minister which improves the position by proposing that the public have a right to statistical information relating to policy decisions. However, I respectfully suggest that Amendment No. 174 is better. The term "statistics" is narrow. As the noble Lord, Lord Goodhart, said, facts may not be statistical, and he gave an example. I should like to offer one or two others: the route of the smallpox bacillus through a ventilation system at the University of Birmingham which killed its last victim in the UK; new maps of the watercourse beneath a mine slag heap which was involved in the Aberfan disaster; and the level of training of an anaesthetist in a medical mishap, which was a concern revealed in a recent court case. Those kinds of facts may be instrumental in a policy decision.

To permit the release of information only after the policy decision has been announced destroys an important function of freedom of information. That was reflected clearly in Treasury guidance to the 1994 voluntary code. That states: The public interest in disclosure is particularly strong where the information in question would assist public understanding of an issue subject to current national debate". It continues, the emphasis is on assisting understanding, consideration and analysis of existing and proposed policy". That function also makes possible the informed consent of citizens to the hard choices which governments have to make.

My final point will, I hope, reassure noble Lords who fear the alleged tendency to secrecy of bureaucrats. The trade union of senior bureaucrats—the policy advisers—the FDA, has publicly supported freedom of information legislation for many years. I confirmed the position last week. I was not made aware of any difficulty in implementing the present voluntary code which in some ways goes beyond the Bill. Incidentally, when I worked in the Civil Service, I cannot recall any advocacy for withholding information to protect an official. I say no more.

When I was with the Health and Safety Executive the culture was, to quote the evidence of its chairman to the Public Administration Committee, in 1998 that, open access to health and safety information improves public understanding and strengthens confidence in the system". Those who operate the system at Ministers' bidding can manage and would welcome access to factual background. Authoritative guidance states that this background should be released during debate and not after, and the citizen in a democracy worthy of the name both needs and is entitled to it. I therefore recommend the amendment.

Lord Brennan

I hope my noble and learned friend the Minister will forgive me if I give yet another example to test the way in which this distinction between statistic and facts might work. Let us suppose that the Minister of Agriculture, Fisheries and Food negotiates with a major firm producing genetically modified crops a series of tests to determine whether a product is of public value. The material upon which that decision will be made will involve fact. The resulting decision whether to implement a policy to promote such a product would involve policy. The recipients of that policy are the people who will consume the product. Those people will feel that they are entitled to know the facts upon which the product is put into the marketplace.

On reading the Bill it would appear that in that example the Government can rely on Clause 33(2) to say that the facts behind the matter are covered by the policy exemption; the company can rely on Clause 41 to say that the matter is of commercial interest; and the public can say nothing unless they look carefully at Clause 73. It says that under the Aarhus convention the Government are to allow for access by the public to environmental information and the public might be entitled to such information.

I chided the Minister the other day with a reference to the Aarhus convention. But it is exceptionally important because its terms expect—indeed require—governments to allow the public access to information about the environment. Under Clause 73 the Government must make regulations to allow that to occur. I am back to my example. The Government claim exemption; the company claims exemption; and the citizen says, "Under the Aarhus convention I am entitled to know".

I hope that that is not too elaborate an example. The item is of current interest and graphically illustrates the difficulty of claiming that there is some difference to make between fact and opinion. The public will want to know the facts. I hope that the Bill will allow them to do so.

Lord Norton of Louth

Prompted by the noble Lord, Lord Brennan, who made an extremely important point, and following on from what he said, I invite the Minister to think of the matter not so much simply in terms of the principle of open government, important though that principle is, but in terms of what it may deliver for good government. The late Enoch Powell used to argue that one did not really need to be informed about the background material that led to a government decision; all one needed was the decision and then one could deliberate on whether it was a good decision. I share the Minister's scepticism about that and argued against it.

If people are to judge the decision, they should have access to the information on which it is based—not the internal deliberations, as the Government can present their reasoning for reaching a conclusion. But if there is to be a wider debate about that decision, the more information that led to it that is put into the public domain, the better the debate will be informed. If the material comes after the event, one is looking at it after the decision has been made and perhaps implemented. It is then too late. If one follows that line of reasoning, the onus should be on putting into the public domain as much information as possible to enable a proper public debate to take place. The Government would be the beneficiary because the debate would be that much better. If their reasoning is sound, people would be more likely to support them rather than, after the event, feel miffed that only then had they received the information.

On that line of argument, as much material should be pushed out into the public domain as possible and only in the most exceptional circumstances should it be withheld. If one takes that approach, it points one to go further than the amendment in the name of the noble and learned Lord the Minister, Amendment No. 172, and leads one far more in the direction of the other amendments that are before the Committee. The quality of government would benefit if there were that degree of openness.

10.30 p.m.

Lord Cope of Berkeley

I hesitate to intervene again at this stage of the Bill, but not sufficiently so to stop me talking. When I was a Minister and was involved in looking at statistics and factual information in order to make decisions, I had the advantage, at least at one point, of being advised by the noble Baroness, Lady Whitaker, in her previous capacity. Based on that experience and others, I believe that I can make a contribution to the debate.

The noble Lord, Lord Goodhart, paid a great tribute to the noble and learned Lord, Lord Falconer, in saying that he is the Government's preferred choice for defending the most difficult of cases. Perhaps that is part of the qualification for being a senior silk at the Bar. It seems to me that he has a rather difficult case to defend, but it depends on a number of considerations. The first is the difference between statistical information and factual information; the second is the question of information before and after the decision being released; and the third is the issue of the harm test.

On the difference between statistics and facts, the Committee will be aware that I am an accountant and might be presumed to prefer numbers to other facts. But I am well aware that numbers, either as statistics or accounts, do not necessarily present the whole picture. A great deal of information cannot be represented by numbers, but is nevertheless necessary if a good decision is to be reached.

Indeed, the whole point of a political or ministerial decision is that it cannot be reduced to numbers or, for that matter, to facts. It requires an element of judgment. If we are dealing with an expert decision, then the experts in a particular field—such as the civil servants in a government department, the generals and admirals for matters related to defence or the doctors and surgeons for a medical problem—do not need politicians to intervene. However, where a gap appears between the facts and the matters to be decided, or, to put it another way, where an element of guesswork must be incorporated, then the politicians have to step in and come to the decision. However, they must do so only on the basis of the best possible statistical and factual information that can be produced for them.

The question we need to consider is whether statistical information has a different character from other factual information. In some senses, of course it does. It is possible to add up one column of figures, then another column of figures, and conclude that one total will be greater than the other. One or the other may then be preferred. However, we all know that statistics can mislead as well as tell the truth. Numerous examples exist which I shall not develop because it is sufficient simply to state the case. The basis on which statistics are produced can profoundly influence the final outcome.

The same is true of other factual information. For example, opinion polls—other than on easy questions such as "Would you vote Labour, Conservative or Liberal Democrat?"—on more difficult topics, such as issues of the day, often present problems of interpretation. It has long been noted that how a question is expressed can bring about a different statistical response, one that would not necessarily reflect what should be ultimately the correct decision. I do not believe that any great advantage may be gained or objectivity achieved by relying on statistics over other "factual" information. I refer to "facts" in inverted commas here because all facts which are brought to bear when reaching a political decision, such as the one I have described, are open to doubt. So I do riot think that it is valid to make a distinction between the emphasis placed on statistical information in government Amendment No. 172 as opposed to the emphasis on factual information in the opposition Amendments Nos. 174 and 175A.

The second question to consider is that of "before" and "after". The government amendment states that, Once a decision as to government policy has been taken", information should then be released. The difficulty here is that it is well known that once a government policy has been announced—namely, the decision has been reached and made public—the question of saving face enters into the process. It is difficult for a government to change their original decision. That may be desirable or undesirable, but it is the fact of the matter. It is easier for a government to change their mind before they make any public declaration of their intentions than it is afterwards. We see this all the time in the course of the practice of government and when observing government. I think, therefore, that leaving the release of information, whether it be factual or statistical, until after a decision has been reached, has a disadvantage over the release of information in advance.

At the same time, this has to be measured against the third aspect, which is summarised by the harm test. Paragraph (c) in Amendment No. 175A expresses this as, other information, unless its disclosure would, or would be likely to, prejudice the frankness and candour of internal discussion". That is extremely important.

Lord Falconer of Thoroton

The effect of the amendment is that those words apply only to paragraph (c), not to paragraphs (b) and (c). As I understand the effect of Amendment No. 175A, there is no exemption at all in respect of paragraphs (a) and (b); the information automatically comes out, irrespective of harm.

Lord Archer of Sandwell

Yes.

Lord Cope of Berkeley

Yes. But the harm test is nevertheless important.

Lord Falconer of Thoroton

It does not apply here.

Lord Cope of Berkeley

Other information is not exempt unless its disclosure would prejudice—

Lord Falconer of Thoroton

The noble and learned Lord, Lord Archer, has confirmed the effect of paragraphs (a) and (b) of the amendment: even if the information were to cause harm, it comes out.

Lord Cope of Berkeley

In that case, perhaps I may record that I believe that the frankness and candour of internal discussion is of extreme importance. If the business of government is to be carried on properly, that is essential.

Lord Archer of Sandwell

I intervene only because I am slightly puzzled by the paraphrase of my noble and learned friend. I think he understands what we are saying. But if it will prejudice the frankness and candour of internal discussion, it will cause harm, will it not? That is the harm test.

Lord Falconer of Thoroton

I may have got it wrong, but I understand that the effect of the amendment is that information is not exempt if it consists of, (a) factual information". Therefore, if it is factual information, there is no harm test of any kind applied.

Lord Archer of Sandwell

That is right.

Lord Falconer of Thoroton

So any factual information, even if it were to cause harm if it was published, must be disclosed. That is the effect of the amendment. Paragraph (c) is in a different category.

Lord Cope of Berkeley

Once again I find myself at a disadvantage because I am not a lawyer. I am not able to analyse as precisely, as it seems others can, the precise effect of Amendment No. 175A, which is proposed by one leading lawyer and opposed by another.

Lord Archer of Sandwell

At the risk of trying the Committee's patience, perhaps I may have one more try. It is my noble and learned friend who has insisted on exempting by categories. It is perfectly right that it would be exempt from this category.

Lord Cope of Berkeley

I return to the fact that frankness and candour in internal discussion remains of the highest importance in achieving good government decisions.

Lord Falconer of Thoroton

Perhaps I may return to my basic theme in relation to Clause 33. The clause provides an exemption in relation to the material covered by Clause 33(1), which is a class exemption. That includes factual material. The public authority does not need to trouble itself as to whether it is a fact or not; it simply looks to see whether it is within Clause 33(1)(a). It then applies the public interest test under Clause 2.

Perhaps I may apply that approach to the examples that have been given. In regard to information relating to GM foods, environmental information regulations will give a right to some of the information referred to by the noble Lord, Lord Brennan, in his example. To the extent that the information is not available under those regulations, and in so far as the information would be exempt under Clause 33, it would then be for the public authority or the Minister to decide whether or not the public interest in disclosing the information outweighed the public interest in maintaining the exemption, the purpose of the exemption under Clause 33 being to give space in the making of a decision. That approach leads to a sensible result being reached.

Similarly, in relation to the example given by the noble Lord, Lord Goodhart, of a broken rail beside the track, if that was a fact in the possession of a public authority for the purpose of making a policy decision, it would be exempt under Clause 33, but it would then be for the public authority to decide where the public interest lay in relation to disclosing that information. It would have to balance suppression against disclosure, and decide where the balance lay. That is a perfectly sensible approach. With respect, not one Member of the Committee has said why it is not sensible.

I also emphasise that the Government believe that factual information used to provide an informed background to decision-taking will normally be disclosed. As I indicated when this matter was before the Committee two days ago, we have agreed to bring back into new Clause 2 the steer towards the disclosure of such information that had been provided in Clause 13(5). So again, we are at one with those Members of the Committee who want to see greater openness in relation to factual information.

There will be occasions when it will not be in the public interest to disclose facts that have been under consideration, as to do so would, for example, disclose advice which is properly protected by the exemption in Clause 33. To ensure, as the noble Lord, Lord Cope, eloquently described it, the protection of the frankness and candour that is required for good government to take place, we need to allow some leeway so that, in these admittedly exceptional circumstances, factual information could be withheld. We believe that the right approach is for the public authority to address that by asking itself the question, "Where does the public interest lie?", not on the basis of some fine legal question as to what is or what is not a fact.

Amendment No. 175A would provide no protection whatever for facts or analysis under Clause 33 or Clause 34, even if it would be prejudicial to disclose that information. I believe that the noble and learned Lord, Lord Archer, accepted that. Furthermore, the effect of paragraph (c) in the amendment is to convert the test in Clause 33 into a prejudice-based one, except in relation to information relating to Law Officers.

This information is of a sufficiently sensitive nature to warrant a class exemption as its disclosure would almost always entail harm to the formulation of government policy. This being the case, it would be dishonest to have a prejudice test in this clause. Information of this nature should be disclosed only where it is in the public interest to do so, which is already provided for in the Bill.

Perhaps I may deal with a number of other points that have been raised. The first is the "before or after" question. Again, let us remember Clause 2, which allows the public interest to be weighed. Secondly, the noble Lord, Lord Goodhart, said that the Irish Act dealt with factual information in a better manner. Perhaps I may repeat what I am told the Irish Act provides for. Section 19 of the Irish Act has an exemption relating to information submitted to Ministers for their use in transacting government business. This exemption does not apply to factual information relating to decisions already published or made more than five years before the request was made; hence the exclusion from exemption does not cover facts before a decision is made. As I understand it, there is a five-year pause before the factual material becomes available.

Secondly, it is said that we ourselves have sought to draw a distinction between fact and opinion in what was Clause 13(5) which will come back when we produce our amendment. That is not right. The subsection did not purport to define a fact; it did not need to. If we are to separate fact and opinion in Clause 33, which is what is sought, it will be necessary to have a precise definition of what a fact is—which leads us into the minefields that we want to avoid.

Finally, the noble and learned Lord, Lord Archer, referred to the Croham directive, given shortly before the anticipated change of government in 1979. That directive required submissions to Ministers to be set out so as to distinguish between factual information and advice. I am told by my officials that this may be different from the evidence that was given. The directive was not in fact implemented because there was a difficulty in establishing what is factual information and what is advice. I understand the point about the evidence given to the Select Committee but, speaking for myself, I should have thought that it would not be a productive use of officials' time to work out what is a fact and what is opinion. It would be far better to give advice to Ministers and others on the basis of the best way to give advice, rather than on the basis of trying to comply with the Croham directive. I address those remarks to my right because a response could be forthcoming from that direction—

10.45 p.m.

Lord Norton of Louth

Surely civil servants have to make that distinction all the time when they are appearing before Select Committees in the other place.

Lord Falconer of Thoroton

I cannot believe that civil servants appearing before a Select Committee must decide, on the one hand, what is precisely a fact and, on the other, what is precisely opinion. The line would be one where they can make sensible judgments in that respect.

Lord Archer of Sandwell

I am grateful to my noble and learned friend, but my information about the Croham directive differs from his. Unless the Government are prepared to disclose some information about it, I suppose that we shall never know.

Lord McNally

I remember the evidence given by the noble Lord, Lord Butler of Brockwell. Indeed, when giving evidence to our Select Committee, he took some pride in saying that he had actually cracked this. Therefore, I hope that the noble Lord will read this exchange in Hansard and that he may intervene in the matter on Report. That would be most helpful.

Lord Falconer of Thoroton

Indeed. When I repeated to the Committee what I had been told by my officials, I hope I signalled that I knew it was inconsistent with the evidence that had been given to the committee of my noble and learned friend. Therefore, it would be very interesting to hear what the noble Lord says. However, if we go on to consider the principle, we must realise that the directive has not been implemented. I suspect that that is because of the question whether it would be a productive use of time to be drawing such distinctions.

Lord Lucas

Before he concludes, I hope that the noble and learned Lord will touch on the point of when a fact is a statistic and when it is just a fact.

Lord Falconer of Thoroton

It is pretty easy to identify what is a statistic: you know a statistic when you see it. As to what is a fact or an opinion, that is a much harder question to answer.

Lord Norton of Louth

Before the noble and learned Lord sits down, I am still a little unclear from what he said as to what is the objection to Amendment No. 174 tabled in the name of the noble and learned Lord, Lord Archer of Sandwell. The Minister dealt with the other amendments in the group, but I am not quite sure that he dealt with that one. Further, the noble and learned Lord did not deal with an absolutely crucial point made by the noble Lord, Lord Williamson of Horton, as regards the difference between how he and, say, the noble Lord, Lord Armstrong of Ilminster, would interpret something. I believe that to be a crucial point in the context of this debate.

Lord Falconer of Thoroton

Amendment No. 174, tabled in the name of my noble and learned friend Lord Archer of Sandwell, says: Information is not exempt by virtue of subsection (1)(a) insofar as it consists of factual information which has been used, or is intended to be used, to provide an informed background to decision-taking". It takes us straight into the issue regarding what is and what is not a fact. It does not matter in terms of how we approach the matter, because it is dealt with by what was Clause 13 and what is now Clause 2. I should be interested to hear the noble Lord's response as to why that is not an effective approach to the problem.

Lord Norton of Louth

That relates to my final point, which was initially made by the noble Lord, Lord Williamson of Horton.

Lord Archer of Sandwell

Does not my noble and learned friend appreciate that, in Clause 13(5), the Government distinguished between what is and what is not a fact?

Lord Falconer of Thoroton

I do appreciate that; indeed, I dealt with that point. Clause 13(5) referred to the factual background. It indicated that the public interest is served by disclosure. However, because it did not need to do so, it did not seek to define the difference between fact, on the one hand, and, on the other hand, things that are not facts. Clause 13(5) gives a steer in relation to the exercise of a discretion where you do not need to be as precise as you would be if you were defining what was and what was not exempt.

Lord Williamson of Horton

I have been slightly challenged on this point, so I shall rejoin the debate. I should say, first, that I hope the Government do not announce what the noble and learned Lord has just stated; namely, that they do not always know what is and what is not a fact.

The second point is that there is a difference between the proposal in Amendment No. 174 in the name of the noble and learned Lord, Lord Archer of Sandwell, and the situation presented in the Bill by the noble and learned Lord. Under Amendment No. 174 the factual information would be outside the class exemption and there would be no further argument about it. It would be available to the public, full stop, whereas under the position presented with some brilliance by the noble and learned Lord, the decision on whether the information would be available would be taken by the public authority under Clause 33, now Clause 2. So it would be in the hands of the public authority to decide whether or not this factual information would be available. Frankly, that difference is fundamental and it has not been covered by the noble and learned Lord.

Lord Falconer of Thoroton

The effect of Amendment No. 174 is like that of Amendment No. 175A. There is no exemption at all as regards the former amendment. So it follows from what the noble and learned Lord is proposing in Amendment No. 174, that even if it were to cause harm to disclose the information, it would nevertheless be produced. As I understand it, even the noble Lord, Lord Goodhart, does not go along with the idea that, even if were to cause harm, that information should be disclosed. It is not what the noble Lord, Lord Williamson is suggesting is the position, namely, that it might be disclosed under Clause 33 rather than being put into Clause 2 because it comes out irrespective of whether there is harm.

Lord Goodhart

As regards harm, would the noble and learned Lord agree that it could be exempt by virtue of other provisions such as damage to the economy?

Lord Falconer of Thoroton

It might be, but we are debating in the context of Clause 33, which depends on what the information was.

Lord Armstrong of Ilminster

Perhaps I may follow the earlier point made by the noble Lord, Lord Norton of Louth, about before and after. I very much agree with him that the requirement to publish factual and statistical information is likely to improve the quality of government. But the knowledge that that information will have to be published once a decision has been taken would exercise a very powerful degree of discipline on those making the decision. Knowledge that that information would emerge after the event would cast its shadow before, if I may put it that way. Therefore, I do not believe that that is a conclusive argument in favour of prior publication.

Lord Lucas

I very much hope that the noble and learned Lord will not rest on his suggestion that one will know a statistic when one sees it. I do not believe that that is a good basis for using the word in legislation. If I asked the noble and learned Lord how many hours of sunshine there had been today, he would quote me a number and that is a statistic. It is also a fact. But perhaps he does not mean "statistic" in that sense.

Perhaps he means it in the rather more limited sense that a statistic is a number which cannot be verified because all traces of the original facts which made it up have been expunged. Is that what the noble and learned Lord means by "statistic"? If that is so, then a statistic inevitably contains a large element of analysis, because one cannot reach that stage without having taken some decisions as to how the facts should be analysed. Are those not to be revealed as part of the statistics or are we just to be presented with bald numbers and not the basis on which they have been arrived at? It we are presented with that basis, then we are getting into the realms of analysis under the heading of "statistics". It is a very difficult question to settle. Even if we do not arrive at a final answer, I believe that we should be presented with a considered view by the Government of what is a statistic under the new provision and what is not.

Lord Norton of Louth

Perhaps I may briefly comment as well and take the opportunity to respond to the noble Lord, Lord Armstrong. I completely agree with the point he made because, if one knows that the information is going to be in the public domain, that is an important discipline on government and therefore highly desirable. My point is that while that may be necessary, it is still not sufficient in terms of the quality of decision-making.

I understand the point that the Minister makes about the harm test in relation to Amendment No. 174. I can see the argument he makes against Amendment No. 174. However, I do not think that that is sufficient to justify what is in the Bill. It is perhaps a case for reworking Amendment No. 174, but it is certainly not a case for justifying the existing provisions of the Bill.

Lord Falconer of Thoroton

Enjoyable as this is, I think that we should now consider another amendment. I say to the noble Lord, Lord Lucas, that I think that most people would recognise a statistic when they saw it. It would be wrong for me on my feet, as it were, to try to give a statutory definition of a statistic. I shall write to the noble Lord. However, I assert that it is not too difficult to recognise a statistic when one sees it.

Lord Lucas

I disagree fundamentally with the noble and learned Lord on that. I have spent too much of my life among statistics to have any reason to believe that a line can be drawn between a statistic and a fact on one side and statistic and analysis on another. The three blur into each other in a way which admits no firm lines. If we are to see this word in legislation, at least we ought to have a government opinion and some examples as to what constitutes a statistic for us all to go on. I shall be content with a written response from the noble and learned Lord. Therefore I beg leave to withdraw the amendment.

Amendment No. 173, as an amendment to Amendment No. 172, by leave, withdrawn.

[Amendments Nos. 174 to 177 not moved.]

Lord Falconer of Thoroton moved Amendment No. 178: Page 19, leave out line 2 and insert— (""government policy" includes the policy of the Executive Committee of the Northern Ireland Assembly and the policy of the National Assembly for Wales;").

Lord Falconer of Thoroton moved Amendments Nos. 179 to 182: Page 19, line 7, leave out from second ("communications") to ("and") in line 9 and insert—

1. ("(a) between Ministers of the Crown,
2. (b) between Northern Ireland Ministers, including Northern Ireland junior Ministers, or
3. (c) between Assembly Secretaries, including the Assembly First Secretary,").

Page 19, line 10, leave out ("and"). Page 19, line 11, at end insert ("and proceedings of the executive committee of the National Assembly for Wales"). Page 19, line 15, at end insert ("or any part of the administration of the National Assembly for Wales providing personal administrative support to the Assembly First Secretary or an Assembly Secretary").

The noble and learned Lord said: I have already spoken to these amendments. I beg to move Amendments Nos. 179 to 182.

Clause 33, as amended, agreed to.

Clause 34 [Prejudice to effective conduct of public affairs]:

Lord Falconer of Thoroton moved Amendment No. 183: Page 19, line 20, after ("department") insert ("or by the National Assembly for Wales").

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

The Deputy Chairman of Committees (Baroness Nicol)

I must inform the Committee that, if Amendment No. 184 is agreed to, I shall be unable to call Amendment No. 185.

11 p.m.

Lord Goodhart moved Amendment No. 184: Page 19, line 23, leave out (", in the reasonable opinion of a qualified person,").

The noble Lord said: In moving this amendment, I wish to speak also to Amendment No. 189, which stands in my name and that of my noble friend Lord Lester. Amendments Nos. 193, 200 and 201 also stand in our names and those of others.

The purpose of this amendment is to leave out in Clause 34 the reference to, the reasonable opinion of a qualified person". If the amendment is accepted, the decision on whether or not prejudice exists will be taken by the information commissioner and not by the so-called "qualified person". As matters stand, Clause 34 provides the only exemption where in cases of dispute the existence of the prejudice test is decided by someone other than the information commissioner. Subsection (6) of Clause 34 states: A certificate signed by the qualified person referred to in subsection (4)(d) or (e) above certifying that in his reasonable opinion— (a) disclosure of information held by either House of Parliament".

The effect of Clause 34 is that the decision of the qualified person cannot be replaced by the discretion of the commissioner, unlike all other cases where a prejudice test applies, as we were told by the noble and learned Lord on the first day in Committee. Effectively, all the commissioner can do is judicially to review the decision of the qualified person and reverse it if it is irrational. But that is as pretty hard test to satisfy.

Furthermore, the list of qualified persons is very large. For example, subsection (4)(n) provides that, in relation to information held by any public authority not falling within any of paragraphs (a) to (m)" — a qualified person means, a Minister of the Crown, the public authority, if authorised for the purposes of this section by a Minister of the Crown, or any officer or employee of the public authority who is authorised for the purposes of this section by a Minister of the Crown". That is potentially a large number of people. In Clause 52, a government amendment will reduce a similar list of people entitled to override the decision of the commissioner to a smaller list. There is no such amendment here.

Why are the Government proposing that the qualified person should take the decision on Clause 34? There is a natural tendency of people who are involved in decision making to stop others looking at the background to their decision because that makes it easier for people to question that decision. Therefore, the decision whether the exemption is available under Clause 34 will be taken by the persons most likely to take the view that the exemption does apply. It is, of course, not a judicial decision and cannot he appealed against on the merits. It can only be reviewed.

The information commissioner will have extensive experience of taking decisions of this kind because on all other cases of prejudice the prejudice test will be decided by the commissioner. Indeed, it seems to me that the information commissioner will be more qualified than the so-called qualified person to take the decision whether or not the prejudice test is satisfied.

I raise another point. If the qualified person decides that the information is exempt, that is not the end of the matter. The exemption is not absolute except in relation to information held by the House of Commons or your Lordships' House. That is a small category. The balancing operation then has to be carried out under new Clause 2 if a complainant makes a complaint under Clause 49. Who carries out that balancing exercise? It is of course the commissioner. How does she do it? Because of the opinion of the qualified person, she has to assume that the release of the information will cause prejudice. She then has to decide what weight to give to that prejudice when weighing it against the public interest in disclosure. That is, frankly, an absurdity. It is plain that the person who decides whether there is prejudice should be the person who also decides what weight to give that prejudice when carrying out the balancing exercise. It is plain that that person should be the commissioner. It is not appropriate for the qualified person to decide the balancing exercise. Indeed, the Government have not suggested that it should be.

The decision-making process should not be divided up in the way proposed by Clause 34. The whole process should be in the hands of the commissioner. Both the Select Committee on Public Administration in another place and the ad hoc committee of your Lordships' House chaired by the noble and learned Lord, Lord Archer, recommended that the commissioner should be entitled to test the claim to the exemption.

The argument that it should be the commissioner who tests the claim under Clause 34, as she does in every other case of exemption which is not an absolute exemption, seems to me to be overwhelming. I ask the noble and learned Lord to take this back and look at it again, because I believe that Clause 34 in its present form is indefensible. I beg to move.

Lord Falconer of Thoroton

The Government feel in certain circumstances that it may be necessary to exempt from disclosure information the disclosure of which would be likely to prejudice the effective conduct of public affairs in the way specified in Clause 34 or otherwise, which may not be so sensitive as to justify being considered under the class exemption at Clause 34.

The exemptions at Clause 34 reflect the particular nature of the information to which the Government believe protection must be afforded. They take the view that a simple prejudice test would be insufficient in such cases. None the less we recognise that this is an area in which it is right for the commissioner to have a significant role in determining when the exemption applies.

The Bill therefore provides that a public authority may rely upon an exemption under this part of the Bill only where that exemption is considered to apply in the reasonable opinion of a qualified person. As the noble Lord has seen from the Bill, the qualified person is, unlike other exemptions, an identified individual—a Minister or similar person. The commissioner may review whether the qualified person has exercised his judgment reasonably. The noble Lord said that it was absurd to include that provision because of the role held by the information commissioner. But the information commissioner must analyse the basis on which the qualified person has taken the decision and then decide whether the qualified person has acted reasonably.

If, for example, the information commissioner considered that no reasonable qualified person could have identified any prejudice in the circumstances posited, he or she would be entitled to say "I come to a different view" or that the view was irrational or perverse. In such circumstances the commissioner can intervene and overturn the decision of a qualified—

Lord Archer of Sandwell

Would my noble and learned friend forgive me? Is it within his recollection that in their own background material published in 1999 the Home Office agreed without shame that the commissioner could intervene—and I quote— only if he or she could show that the minister's action was unreasonable, in the sense of being irrational or perverse".

Lord Falconer of Thoroton

The case I was positing was exactly that. I was giving as an example a situation in which the information commissioner considered that no reasonable Minister or qualified person could have identified any prejudice. We think it is essential—

Lord Goodhart

I am grateful to the noble and learned Lord. It is not just the question of applying the judicial review test. Surely it is the information commissioner who has to decide under the new Clause 2 what weight to give to the prejudice. It seems to me that it is simply going to cause confusion if she is not also the person who defines whether or not there is any prejudice.

Lord Falconer of Thoroton

She decides first of all, in relation to Clause 34, on a judicial review basis whether or not there is an exemption there at all. Once that is decided it is for the public authority to make its decision under what is now Clause 2, weighing Clause 34 matters against the public interest. That can then be tested before the information commissioner. She can replace the public authority's judgment with her judgment under Clause 2. I see no difficulty in that.

It is essential to have a provision relating to the reasonable opinion of a qualified person to ensure the proper protection of information relating to the effective conduct of public affairs. The information covered by Clause 34 is less sensitive than that covered by Clause 33, but it remains among the most sensitive that a public authority may hold. If public servants cannot be reassured that they may express views in confidence when providing advice, the Government believe that there could be an unwelcome deterioration in the quality of decision-taking in public sector bodies. Similar concerns arise in the context of other interests protected by the Clause 34 exemption.

As always, I come back to Clause 2, where the public interest in disclosure is weighed against the public interest in maintaining the exemption.

Lord Goodhart

We are getting a bit technical here. It seems to me that the reasonable opinion of a qualified person applies only to whether there is prejudice. It may be that in the first instance the public authority concerned has to carry out the weighing exercise under Clause 2, but when the issue reaches the information commissioner, she cannot override the decision of the qualified person except on Wednesbury principles, but she can substitute her discretion for that of the public authority under Clause 2(1)(b). She will have to take the weighing decision on its merits, but she will not be able to take the decision on prejudice on its merits.

Lord Falconer of Thoroton

The information commissioner decides at stage one whether any reasonable qualified person could come to the conclusion that there was prejudice. She can intervene at that stage only on the judicial review basis. If she concludes that no reasonable qualified person could come to the conclusion that there was prejudice under Clause 34, she can override the decision and require disclosure.

Moving on to the discretion phase, if the public authority decides against disclosure, having balanced the reasons for the exemption against the public interest in disclosure under Clause 34, the information commissioner can form her own view. That is pretty clear.

Lord Archer of Sandwell

At the risk of being tiresome, it seems that the commissioner is being called on to carry out a curious intellectual exercise. She may decide that there is no prejudice, but cannot come to the conclusion that the decision that there is prejudice is Wednesbury unreasonable. In that case she has to assume that there is prejudice. She then has to decide afresh the weight of the prejudice. How can she do that as a separate intellectual exercise?

Lord Falconer of Thoroton

I do not see any difficulty in the information commissioner saying that the Minister was reasonable to conclude that there was prejudice, but then deciding that the information should be disclosed after weighing that prejudice against the public interest in discovering the facts.

Lord Lucas

Perhaps I should take the chance to move on to my amendments, which address how wide the ability to apply ones views to the prejudice should be and who should be granted the ability to put a block in the way of the information commissioner.

Perhaps I could start by saying that, if we have a proposal in the Bill such as that set out in Clause 34, why on earth should concern be expressed about having an ability to disclose factual and analytical information taken out of Clause 33? Surely there cannot be any question that disclosure of information which would cause damage in the way that the Government are worried about would fail to fall within Clause 34. Surely we do not need to block off that avenue twice.

I do not believe that the Minister addressed that question at all when we considered Clause 33. Now that we have reached Clause 34, perhaps he could revisit the question and provide examples of the type of factual or analytical information which, if not exempt under Clause 33, would fail to be exempt under Clause 34 if it caused harm to any processes of government. I cannot get my mind around what that might he and I see no reason to double up in this way.

11.15 p.m.

Lord Falconer of Thoroton

First, Clause 34 applies to public authorities other than central government. Clause 33 applies only to central government. Secondly, an example which the noble Lord asks for in relation to Clause 34 might be where English Heritage provides advice to the Secretary of State on whether a building should be listed. That advice would not be covered by Clause 33.

Lord Lucas

Yes, but what possible harm will that cause to the workings of government? The idea that that type of information could be considered for being hidden away by government under freedom of information legislation is quite extraordinary.

Lord Falconer of Thoroton

Whether the disclosure of that advice causes harm is the next question. If the owner of the property in question should gain access to that information before a decision was made, obviously he could take certain steps in relation to his property.

Lord Lucas

If that is the case, that is not a harm to the workings of government; it is a harm to the listed estate. Freedom of information implies changes in the way in which practices are carried out. Since this is information which indubitably falls under the rubric of being considered for future publication, it would be exempt within that.

Lord Falconer of Thoroton

A decision could be made not to list.

Lord Lucas

However, it is being considered for future publication and that is all that is required under that clause of the Bill. I have listened to what the Minister has said and shall read it again in Hansard.

I return to the question of my amendments. I am concerned that not only is a wide range of people allowed to exercise this power, but the power can be extended almost ad infinitum by fiat of the Government. I believe that the clause should be extremely restricted in its activities. It should be restricted to officials or to people such as Ministers who are in direct contact with the public will. If one starts to allow that type of power to be exercised by local councils or by others who in ordinary experience have for years practised things that are considered to be disreputable because they are in no danger electorally, I believe that the whole operation of the Bill may be brought into disrepute. A great power is being bestowed upon officials under this clause. It must be restricted to those on whom the action of public will and public opinion is strong enough to prevent them from misusing the power.

Lord Falconer of Thoroton

The reason the list has been chosen is that the people identified in the list are those who hold the relevant information. That is why they have been chosen. Under the noble Lord's proposal, people other than those who hold the information would have to make the decision. We do not believe that that is the right approach. Those whom we have identified in the list are all people of considerable responsibility: Ministers of the Crown, the Speaker of the House of Commons, the Mayor for London, Ministers in charge of Northern Irish departments, the Assembly First Secretary, the Comptroller and Auditor General and the Comptroller and Auditor-General of Northern Ireland. They all appear to be suitable people and they also have the information in their grasp.

The noble Lord made two points. First, Clause 34 relates to the conduct of public affairs, not the workings of government. The conduct of public affairs would be affected detrimentally if, for example, people could obtain the information that I have referred to in relation to listing and use it in order to affect their own property rights.

Secondly, he referred to Clause 19: considered for publication. It is intended for future publication. That information would not necessarily be intended for future publication. That would depend on the conclusion of the Minister.

Lord Lucas

I find both those statements interesting. In the first, the noble and learned Lord contradicted what he had said earlier and said that a building being considered for listing would come under Clause 34. I had said that if it comes under Clause 34, what on earth is the need to protect it under Clause 33. The noble and learned Lord is being far too protective of information under Clause 33. Anything which is likely to cause disruption to government is already protected under Clause 34.

I am particularly concerned about subsection (n) which allows any public authority to be added willy nilly to this clause and certainly could include local education authorities or, indeed, the very smallest of the public authorities listed in the Bill. As far as I can see, there is no limitation on how far this power can be extended under that subsection. If nothing else, given the Minister's arguments, I consider that that subsection should be deleted.

Lord Goodhart

I have listened to the debate with interest. I remain totally unpersuaded by what the noble and learned Lord the Minister said. This is likely to be an issue to which we shall want to return on a future occasion. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 185 not moved.]

Lord Falconer of Thoroton moved Amendment No. 186: Page 19, line 30, at end insert ("or (iii) the work of the executive committee of the National Assembly for Wales,").

Lord Archer of Sandwell moved Amendment No. 187: Page 19, line 35, leave out paragraph (c).

The noble and learned Lord said: I notice from the Marshalled List that it is suggested that the Committee may wish to discuss with this amendment the Question that Clause 34 stand part of the Bill. I am bound to say that in my experience it is normal for clause stand part to be debated after the amendments have been considered, then we know the final form of the clause we are considering. However, I have no strong views on the matter and am in the Committee's hands.

Perhaps I may speak to Amendment No. 187. We have discussed one of the complaints about Clause 34. Now we come to another. Having immunised the harm test from objective scrutiny, the Government now provide a longstop. Having listed the kinds of mischief which appears to occasion the Government such anxiety, just in case they may have forgotten something, they have a catch-all expression which is breathtaking in its all inclusiveness: which would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs". There is virtually nothing in the whole domain of public administration which could not fall within that expression if some qualified person chose to consider it as falling within it.

That is a perfect example of what the Select Committee on the parliamentary commissioner for administration meant when, in its second report on open government in paragraph 111, it referred to the propensity of some departments to, scatter excuses like so much gunfire in the hope that some exemption might hit the target. That is to undermine the spirit and purpose of the Code and to show disregard for the rights of the individual requester". That is a very long cry from the culture of openness of which my right honourable friend the Prime Minister spoke in his preface to the White Paper. Someone has gone overboard. I do not expect my noble and learned friend to agree with all we say in this Committee, but surely he recognises a total absurdity when he meets it. I beg to move.

Lord Mackay of Ardbrecknish

The noble and learned Lord, Lord Archer, rightly points out that the clause stand part debate is grouped with this amendment. I do not have any intention of developing that; it was added as a kind of backstop—rather like the backstop we are discussing in this amendment.

Perhaps I can pose this suggestion. This clause could do without paragraphs (a) and (b); paragraph (c) alone would do fine. The provision would then read, if, in the reasonable opinion of a qualified person, disclosure of the information under this Act … would otherwise prejudice, or would be likely otherwise to prejudice the effective conduct of public affairs". That would cover the whole lot. It seems to me that there is not going to be much left for that qualified person to allow out without considering whether or not it is reasonable to do so.

I will not even get into the discussion, with all these learned lawyers around, as to what is and what is not reasonable. But what I may think is reasonable as a Minister of the Crown may not be all that reasonable. It may be that I am attempting to protect my bad decision-making, although I may think it is good decision-making. Therefore, I will be reasonable and qualified. Obviously the draftsmen decided, just in case something escaped and there is one last fish in the sea, let us get it with a grenade; and this is the grenade.

I know the noble and learned Lord likes to tell us it is all about openness,.but I am not very sure.

Lord Goodhart

My name and that of my noble friend Lord Lester of Herne Hill is attached to this amendment. At this time of night all I propose to say is that I agree with every word said by the noble and learned Lord, Lord Archer, and by the noble Lord, Lord Mackay.

Lord Norton of Louth

I basically agree with what has been said. But since we are debating the clause stand part Question as well, I should say that it strikes me as a strangely constructed clause if we look at the provisions in relation to one another. We are left wondering, for example, what information held by a public authority is likely to prejudice, the maintenance of the convention of the collective responsibility". The way that provision is drawn strikes me as being distinctly odd.

In terms of paragraph (c), I agree completely with the amendment. I made a note that this is basically a sweeping-up provision, not dissimilar to a discussion we had earlier on Clause 26, which again struck me as a sweeping-up clause to take care of anything that was not covered by other clauses. I am sure the Minister could give examples that would be caught by the provision that may well be justified. But it is so broadly drawn that, as the noble and learned Lord, Lord Archer, mentioned, it can cover anything in the realm of public affairs. We only need some official seeking to protect himself to delay the process. In other words, it may be used as a delaying tactic. But it is so broadly drawn that it encompasses anything to do with public affairs. It needs to be taken away, completely redrawn and narrowed considerably.

Lord Falconer of Thoroton

As has been made clear in the debates two days ago in Committee, this is a catch-all. Does anybody disagree with the proposition that if information, would, or would be likely to, prejudice

1. (i) the maintenance of the convention of the collective responsibility … or
2. (ii) the work of the Executive Committee of the Northern Ireland Assembly …

(b) would, or would be likely to, inhibit

1. (i) the free and frank provision of advice, or
2. (ii) the free and frank exchange of views for the purposes of deliberation",

that material needs to be weighed in the balance against the public interest in disclosure? That is the way the Bill works.

Clause 34 establishes exemption, but only if those tests are satisfied. Once those tests are satisfied, it is for the public authority to decide, when weighing the public interest in disclosure against the reason for the exemption, which of the two should prevail. That is perfectly sensible. Nobody would dispute those provisions. Again, subsection (2)(c) says that if the disclosure of information, would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs", it is exempt; and that needs to be weighed against the public interest in disclosure.

It is important to note that in the course of the debate no one considers the effect of Clause 2; they consider only the effect of the individual exemption. It is perfectly possible to identify items which will be caught by Clause 34 which would not be caught by other exemptions; for example, communication between chief examiners of examining boards and people drafting exam questions. Such material should not be disclosed. One would have thought that people knowing what was in exam papers before they came out would not be good for the effective conduct of public affairs.

The Bill is designed to promote freedom of information but it must be sensible to define a catchall by things which reasonable people would regard as preserving; for instance, the free and frank exchange of advice or the effective conduct of public affairs. It sets what is to be on one side of the balance and Clause 2 sets what is to be on the other side. I therefore suggest that noble Lords withdraw their amendment.

11.30 p.m.

Baroness Whitaker

Perhaps I may clarify an aspect of the healing properties of the balancing act of the new Clause 2. Is it that either the public authority or information commissioner, when judging where the balance of public interest lies, will act on the basis that the presumption is against disclosure, unless it is in the public interest to do so?

Most of the amendments, including that to Clause 33(2), argue that the presumption should be in favour of disclosure, unless there is a public interest against it. During our debate on Clause 33, the noble and learned Lord said that there was not much between us on this point and why, therefore, not have it "our" way: that the presumption is against disclosure, unless it is in the public interest, rather than in favour of disclosure, unless there is a public interest. Have I understood the balancing act correctly?

Lord Falconer of Thoroton

The way it works is to ask whether it is within an exemption. If it is, the public authority asks itself whether, in the circumstances of the case, the public interest in disclosing the fact outweighs the public interest in maintaining the exemption. As I said to the noble Lord, Lord Goodhart, that means that one must see which is higher in the scale. If they are equal, as I made clear to the Committee on the previous occasion, one does not disclose. That is how it works.

Baroness Whitaker

In other words, the presumption is against the disclosure.

Lord Falconer of Thoroton

One has to work out what the balance is.

Lord Archer of Sandwell

Then, of course, we are back to our old friend, the tie-breaker. My noble and learned friend's argument is that you sweep everything into the category and then subject it to a harm test. All right, it has been subjected to a harm test so there will be nothing to worry about. However, why have any categories at all? Why not say that every piece of information which anyone ever requests shall simply be subjected to a harm test?

Those who presented the Bill presented us with a list of categories and we have spent a few hours discussing how those categories are to be defined. My noble and learned friend, with commendable frankness, called the provision a "catch-all". I am finding it extremely difficult to understand what is the function of a category if it does not matter what is in it and it is simply subjected to a harm test.

Before I work myself up into a frenzy, at this hour in the evening I had better ask for leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 188 to 190 not moved.]

Lord Falconer of Thoroton moved Amendment No. 191: Page 19, line 41, at end insert— ("(3A) In relation to statistical information, subsections (2) and (3) shall have effect with the omission of the words "in the reasonable opinion of a qualified person".").

The noble and learned Lord said: I have already spoken to Amendment No. 191. I beg to move.

[Amendment No. 192, as an amendment to Amendment No. 191, not moved.]

[Amendment No. 193 not moved.]

Lord Falconer of Thoroton moved Amendments Nos. 194 to 196: Page 20, line 14, leave out from ("by") to end of line 17 and insert ("any Welsh public authority other than the Auditor General for Wales, means—

1. (i) the public authority, or
2. (ii) any officer or employee of the authority authorised by the Assembly First Secretary,").

Page 20, line 21, at end insert— ("() in relation to information held by the Auditor General for Wales, means the Auditor General for Wales,"). Page 20, line 22, leave out from ("any") to end of line 28 and insert ("Northern Ireland public authority other than the Northern Ireland Audit Office, means—

1. (i) the public authority, or
2. (ii) any officer or employee of the authority authorised by the First Minister and deputy First Minister in Northern Ireland acting jointly,").

[Amendments Nos. 197 to 201 not moved.]

Clause 34, as amended, agreed to.

Clause 35 [Communications with Her Majesty, etc. and honours]:

Lord Falconer of Thoroton moved Amendment No. 202: Page 21, line 9, at end insert ("or dignity").

The noble and learned Lord said: The conferring of honours raises questions of personal confidentiality and the Government believe that it should receive substantial protection under the Bill. The conferring of honours raises such questions not just in relation to the candidates for honours themselves and members of their families, but also in relation to those who contribute to the process of selection. Questions of confidentiality can arise just as easily in regard to posthumous awards. It will be obviously embarrassing, and potentially distressing, for surviving relatives to discover that the deceased was considered but rejected for an honour. The Bill has been drafted in recognition of this and reflects the status quo contained in guidance set out in the White Paper Open Government in 1993 which applied an exemption for honours material for 75 years.

Nevertheless, I accept the need for as much transparency as possible in the honours system. When this clause was previously debated in another place my honourable friend the Parliamentary Under-Secretary of State undertook to look again at the duration of the exemption. The Committee will be pleased to learn that the policy has since been reviewed, and Amendment No. 327 has been tabled to reduce the duration of this exemption to 60 years.

Finally, Amendment No. 202 is merely clarificatory. The term "dignity" refers to peerages, and the amendment ensures that the exemption applies to the granting of peerages as well as meritorious awards. Amendment No. 338 ensures that the corresponding provision in the Data Protection Act is similarly amended. I beg to move Amendment No. 202. I hope that the noble Lord, Lord Lucas, accepts that the amendments to which I have spoken achieve what he intends and he will not move Amendment No. 203.

Lord Mackay of Ardbrecknish

Did the noble and learned Lord really intend to refer to peerages or meritorious awards? Are peerages not meritorious awards?

Lord Falconer of Thoroton

The exemption applies to peerages and meritorious awards. I am not sure that I did say "or".

[Amendment No. 203 not moved.]

Clause 35, as amended, agreed to.

Lord Bach

I beg to move that the House be now resumed.

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

House resumed.

House adjourned at twenty-one minutes before midnight.