HL Deb 25 October 2000 vol 618 cc434-56

(" . The applicant may appeal to the Commissioner where a public body refuses to comply with a request for information under this Act and the Commissioner shall determine whether it is in the public interest to comply or not, and shall direct the public authority to comply where he finds that, on balance, it is in the public interest to disclose.").

The noble Lord said: Amendment No. 259 seeks to insert a new clause. The groupings list suggests that a large number of provisions, including the Question that Clause 52 stand part of the Bill, are to be considered with Amendment No. 259. That gives the clue to what all of these amendments are about in one way or another; namely, the ministerial veto. The White Paper considered ministerial veto over disclosure and specifically rejected it. It stated: We have considered this possibility, but decided against it, believing that a government veto would undermine the authority of the Information Commissioner and erode public confidence in the Act". However, as it stands, Clause 52 gives Ministers the right to veto any order made by the commissioner requiring the Government to release information on public interest grounds.

In another place, arguments were put forward to justify this, including the comment that if the information commissioner was able to override Ministers and officials, that, would, artificially and unnecessarily, create a democratic deficit.—[Official Report, Commons Standing Committee B, 8/2/00; col. 431.]

That is most certainly an arguable point. In any case, we believe that it is for the commissioner and, ultimately, Parliament to take the leading role in ensuring that government and public authorities are as open as possible.

I am aware that government amendments have been included in this grouping. Under the ruling imposed earlier by the noble and learned Lord, Lord Archer, during our debates on the previous Bill, I should not refer to future amendments, but only to the one standing in my name. However, perhaps I may say that we support moves to give more power to the commissioner, linked to moves to make the enforcement body accountable to Parliament. Amendment No. 259 would achieve this in a relatively straightforward and understandable way, but perhaps that would make it less watertight legally than some of the more elaborate formulations which have been tabled in later amendments. I beg to move.

Lord Goodhart

This group of amendments is the last grouping which gives rise to an important point. I believe that the ministerial right of veto is an extremely serious and important matter.

I should say that I am reasonably grateful to the Government for modifying the original version of Clause 52 with their own proposed amendments. Those amendments will limit the possible override to Cabinet Ministers or the senior Ministers in the devolved parliaments or assemblies. I would be more grateful if I were sure whether one ought to be grateful to people for not doing something that they ought never to have done in the first place. However, it represents a significant step in the right direction.

As I have said, this is a serious issue. I accept that it is probably relatively unlikely that it will be used, because any Cabinet Minister who decided to override a decision made by the information commissioner would be likely to be severely criticised. Furthermore, the fact that a Cabinet Minister had overridden a decision of the information commissioner obviously would be something that would come immediately into the public domain. However, I believe that, in principle, this is wrong.

The justification that has been put forward—namely, that it is somehow undemocratic for a commissioner to compel a government or public authority to disclose information against their wishes—seems completely bogus. What is of concern here is the concealment of information, not by Parliament but by the executive. It is and always has been one of the clear roles of the judiciary—for this purpose I would include the information commissioner among the judiciary—to control the executive. It is Parliament's inability to control the executive which causes many of our democratic shortcomings. So that argument goes out of the window.

We have here an entirely byzantine structure. We have initially a public authority—it may be a government department, a local authority or one of a large number of other public authorities—which comes to the conclusion that information ought not to be disclosed. A complainant then goes to the commissioner and the commissioner—who is of course entitled to see the information in order to reach a conclusion—says, "No, I think that that information should be disclosed". The public authority, which is disappointed by the decision, then has an opportunity to take the issue to a tribunal before there is disclosure.

But there is a shortcut. Instead of the public authority going to the tribunal and obtaining a decision there, a Cabinet Minister may come in and override the information commissioner. The Cabinet Minister can say, in effect, "I think the information commissioner took the wrong decision. I agree with the original decision of the public authority that this information should not be disclosed".

What happens then? No doubt the noble and learned Lord will put me right if I am wrong, but it seems fairly clear that that decision would be judicially reviewable—I see the Minister nodding his head in confirmation—but what happens with judicial review? Under Clause 52(2), the accountable person is supposed to inform the complainant of the reason for his opinion, and those reasons are a basic necessity for the purposes of judicial review.

But we then go on to Clause 52(3), which states: The accountable person is not obliged to provide information under subsection (2) if, or to the extent that, compliance with that subsection would involve the disclosure of exempt information". So the accountable person—in this case the Cabinet Minister—says, "I am not going to tell you what my reasons are. I could not tell you without revealing exempt information".

So where does that leave the judicial review? The court hearing the judicial review application will be in a very peculiar position. It appears to me—if I am wrong, I shall be glad to be put right—that the court hearing the judicial review application cannot ask to see the information. It is therefore in a weaker position than the information commissioner who can at least see the information. Once a matter goes to court for judicial review, it will be extremely difficult—at any rate, without some clear statutory provision—for the court to look at information which has not been disclosed to the parties. I suppose there may be exceptions in cases where there is a PII certificate, but the clause does not propose anything like that.

The court will not be able to see the information and, because of Clause 52(3), in some cases it will not be able to see what are the accountable person's reasons. Therefore, the possibility of effective judicial review seems to be non-existent. Even if this clause was in principle acceptable—I do not believe that it is—we are left in a position where, although an application is apparently judicially reviewable, in some cases it will not be effectively reviewable because the court will not know the information, and the court will be unable to find out the reasons of the accountable person. It will be operating in a complete fog, and that is an impossible position.

That is an example. It is not merely a defect which is curable; it shows some of the fundamental problems with the clause itself. The Government should take the view—the view adopted by the Select Committee—that they should trust the information commissioner, backed up by the tribunal, to get the decision right and should not seek to reserve a right to override the decision of the commission.

10.15 p.m.

Lord Archer of Sandwell

This is another rather curious grouping. Some of the amendments relate to the powers of the commissioner, but the principal concern of most of the amendments relates to ministerial override. Perhaps that is the issue which goes most directly to the whole purpose of the Bill.

I should like to speak to Amendments No. 273, 286 and 288. I accept that as a matter of drafting they have been overtaken by events. But, as my noble and learned friend was at pains to explain to us some days ago, the substantial redrafting to which the Government have subjected the Bill does not betoken sincere repentance; it is just better drafting.

The White Paper seems a very long time ago. The noble Lord, Lord Cope, quoted what it said about this matter. Bliss was it in that dawn to be alive! The whole subject of freedom of information was alight with promise. Now the clouds have gathered. This is one of the clearest examples of that position. I am falling into the trap against which I warned my noble and learned friend. I am replying to his reply before he has said it. But he will understand that I have gathered the arguments which have been used about this in previous debates. There is the democratic deficit. That is absolutely breathtaking. In a constitutional law paper, a student who came up with that would not even be allowed to continue the course.

As the noble Lord, Lord Goodhart, said, Ministers are accountable to judges. They are accountable every day of the week to people passing judgment in accordance with the rules. That is exactly the commissioner's function. It is not a democratic deficit; it is called "the executive being subject to the rule of law".

The noble Lord, Lord Goodhart, dealt with the judicial review argument. It will not benefit the argument if I repeat it. I was once privileged to chair the Council on Tribunals. I learned that to have someone in post who has acquired expertise in a relatively narrow field is a very good way to have something reviewed. I am not in any way denigrating High Court judges. Some of my best friends are High Court judges. But they do not replace the expertise of someone like the commissioner.

We have not yet had the argument that Ministers will override the commissioner only where they believe it to be essential to the public interest. That betokens a certain naive faith. Ministers have their share of original sin. Again, I am not being rude about Ministers. I have a history of being a Minister; I have previous convictions. But to suggest that they may disregard any possible interest which they might have in non-disclosure is really expecting a higher standard of ethics than almost any human being could be expected to deliver, particularly when the chips are down.

If reliance is to be placed on the collective wisdom of Cabinet Ministers, of course a Cabinet Minister will have to go to his colleagues and get them to agree, but it is precisely when a government have their back to the wall that they develop a collective stampede into secrecy.

When freedom of information legislation was introduced in New Zealand, the Danks committee, which considered the matter there, expressed its confidence that the ministerial veto would be issued only in compelling cases. The Attorney-General used the argument to which the noble Lord, Lord Goodhart, has just adverted. He said that it would be a brave Minister who exercised the power. Yet in the very first year there were vetoes on forecasts about the labour market, on estimates of the number of unregistered unemployed people, on the establishment of an investment bank, on a tender for a post office contract, on an evaluation of computer use in schools and on the tender price of a contract for wall plugs— all those in the first year. Then, of course, the legislation was changed because it was found that it did not work.

The veto might have been more acceptable if the list of exclusions with which we are dealing had not contained so many category exclusions. If it had subjected more of them to a harm test, the information would have been disclosed unless some identifiable harm was likely to result. But, in the absence of a harm test, disclosure may be refused even if no harm is likely to result. The only safeguard against that—the only long-stop—is the public interest override. If, in the application of that test, Ministers are to be judges in their own cause, we are back to the position that Ministers decide what shall be revealed and what shall be hidden. That is precisely where we were before there was a Freedom of Information Bill.

The noble Viscount, Lord Colville of Culross, tabled an amendment to limit the number of exemptions to which the veto is to apply and to limit it to Ministers and certain other senior officials. Again, to some extent that has been overtaken by my noble and learned friend's amendment. I explained in an earlier debate that the noble Viscount, Lord Colville, asked me to say that he apologises for his absence. He is unavoidably out of the country but he asked me to refer to his amendment. Perhaps when he replies my noble and learned friend will explain why it is necessary to have a ministerial override in respect of information which is already accessible to the public. It may be that I am becoming slow in my old age, but I really have not understood the logic behind that.

What do the Government fear will wash out of Pandora's box through that sinister escape route? I really do wonder why it is necessary to have a ministerial override at all, which is why I tabled Amendments Nos. 286 and 288. I accept that they have been overtaken by my noble and learned friend's amendments, which may be why he added his name to my Amendment No. 284. I am grateful to noble Lords who added their names to that amendment, but I was pleasantly surprised to see that they included my noble and learned friend.

It is true that in an earlier debate I renounced proverbs about Greeks bearing gifts, but I have thought of at least two possible reasons why my noble and learned friend may wish to add his name. He may simply have noticed that the subsection is out of date because it refers to Clause 13, which on any showing is destined for exile, and decided to man the gun after it was no longer loaded; or he may wish to accord a right of appeal to the tribunal against ministerial override, which is what the amendment suggests. I should be grateful if, when he replies, he would let us into that secret.

I also tabled Amendment No. 317 to delete subsection (3) of Clause 56, which makes it clear that there is no right of appeal to the tribunal against a decision notice or an enforcement notice.

Lord Falconer of Thoroton

The noble and learned Lord said that I added my name to Amendment No. 284. Did he mean Amendment No. 286?

Lord Archer of Sandwell

I thought that was what I said. I apologise if I said Amendment No. 284. I meant Amendment No. 286. I am grateful to my noble and learned friend. At least it was not a misprint. He accepts that he added his name to it. We shall learn the secret in a few moments.

My noble and learned friend has been helpful and quite accommodating from time to time in these debates. With a concession on this issue, he could build up a store of moral capital which might well see him through the remainder of our debates. If he opposes the amendments, I say at once that I should not support them today in the Division Lobby and I certainly do not propose to press mine. However, since we appear to be embarking on a constructive dialogue, I hope that that question will not arise.

Lord Brennan

The Committee heartily endorsed the remark of my noble and learned friend the Minister about a cultural change being achieved by the Bill. That change must not only involve government (either Ministers or civil servants), but also the public. They are the crucial element in this exercise. They must have confidence in the process created by the Bill. It will, therefore, be important for us to be able to explain to the public the way in which the Bill works.

If asked by a member of the public how the citizen will receive information under the Bill, a simpler explanation, allowing for the success of government Amendment No. 297, would be as follows: "Save as prohibited by a certificate signed by a Cabinet Minister, there shall be a right to information as hereinafter provided." I hope that I shall be forgiven for putting it so briefly, but that is the effect of eliding Clause 52 with Clause 1. The public will ask: "Why should there be such a veto?"

There is a perfectly reasonable explanation as regards Clauses 21 and 22 dealing with national security; and there is a specific right of appeal under Clause 59 in relation to such certificates. I am sure that that would be acceptable. But further explanation that, on top of that, a ministerial veto would be allowed for any one of the other 18 exemptions would be a little surprising to the ordinary citizen.

If one is then to say that the Minister will exercise the veto on a certain basis, I invite my noble and learned friend to say how the veto would be exercised. First, if it is only to be exercised by a Cabinet Minister, the Home Secretary said in a debate in April in the other place that he promised to require that Cabinet colleagues be consulted before a veto was issued and that that should be required on the face of the Bill if possible or, failing that, under the ministerial code. Is that still the proposal? If it is, it would mean that any veto—subject to the fears mentioned by my noble and learned friend Lord Archer—would be the veto of all, not just one.

Secondly, one asks the question: if the veto is to be exercised in that fashion, on what basis will it be exercised? It will arise after a commissioner has considered the public interest and prejudice; and if the Minister disagrees and has to give reasons for that disagreement, there must be a set of principles on which it is anticipated such a veto would be exercised. What are they?

I ask these questions following my opening comment that, at the end of the day when the Bill becomes law, it must have public confidence. A wide-ranging right of ministerial veto will be a very difficult matter to explain to the ordinary citizen under the umbrella of freedom of information.

The Committee may like to note that only a few days ago the noble and learned Lord, Lord Steyn, one of our most distinguished Law Lords and one of our leading commentators on the constitution, made a speech in which he regarded freedom of information as a highly normative aspect of constitutional government. By that, he meant that it was vital to the exercise of democratic rights. He put it in this way. We now have a fully participatory democracy—Lincoln's government of the people, by the people, for the people. That is only possible if the people have the necessary knowledge or, at least, the means of acquiring that knowledge.

Freedom of expression is the very lifeblood of democracy, but it is truly meaningful only if there is full and effective freedom of information. A comprehensive freedom of information Act is the most important piece missing from the jigsaw of our law. Let us hope that Parliament will supply it. With that objective in mind, why supply it with this veto?

Lord Norton of Louth

It is a pleasure to follow the noble Lord, Lord Brennan, and, not for the first time, to reinforce the points that he made, which I believe are extremely telling in the context of this clause. Like him, I should like to remind the Minister, not for the first time, of the intention behind the Bill. That intention is quite clear and it is stated in the foreword to the draft code of practice. Paragraph 2 opens with: It is the Government's intention that the Freedom of Information Act will be a catalyst for a change of culture within the public service towards greater openness". I invite the Minister to explain how this clause will contribute to serve as a catalyst in order to achieve that particular intention. Why should secrecy-prone Ministers change their culture if they have the ultimate power of veto? Officials in secrecy-prone departments—and some are prone to that—will have the opportunity to persuade the Minister to apply the provisions of Clause 52 by issuing a certificate.

I appreciate the point made earlier by the noble Lord, Lord Goodhart, that such vetoes may be used in exceptional circumstances. That is the claim. I was going to go on to make the very point that the noble and learned Lord, Lord Archer of Sandwell, made about the experience in New Zealand, where, I gather, the veto was used 14 times in the first four years. The noble and learned Lord gave specific examples. As he mentioned, it was then tightened up, and I appreciate that the Government intend to move some way in that direction, although they will not go so far as the provisions in New Zealand.

Therefore, for the reasons that have been given, I believe that there is a substantial problem with this clause. As those reasons have been explained so eloquently by the noble Lord, Lord Brennan, and the noble and learned Lord, Lord Archer, I shall not repeat them.

I suspect that the Minister may fall back on what I bane is the well-tried formula that he employs in dealing with catch-all or broadly-drawn provisions. He cites examples where the use of the particular power would be appropriate. However, if one looks at the occasions on which he has cited such examples, they have never been sufficient to justify the breadth of the provision. His examples could be encompassed within a much narrower framework. Indeed, I find that what Amendment No. 293 seeks to achieve is as attractive. Certainly, I believe that we need to move in that direction. I take the view that if there is no shift in that direction, I should prefer the clause to be removed.

10.30 p.m.

Lord Falconer of Thoroton

When the Freedom of Information Bill becomes law, we intend that it should be a catalyst for a change in culture. The amendments that we have tabled under Clause 52 will ensure that the executive override is limited in application. It will be available only on the signature of a senior member of the Government. Although, for reasons that I shall explain in a moment, it cannot be put on the face of the Bill, it is intended that the exercise of the override should occur only after consultation within the Cabinet. Its use will he subject on the face of the Bill to a clear duty to explain the circumstances. We can be sure that this House and the other place will hold such signatories accountable for their actions and that they will also be accountable in court pursuant to judicial review proceedings. I shall deal with the points made by the noble Lord, Lord Goodhart, in due course.

There will be a limited, defined, restricted override. Having said that, in our judgment it is inescapable that there will be occasions, probably few in number, when the protection of the override will be necessary. We believe that in such cases, which will be those dealing with the most sensitive issues, it should be a senior member of the Government, able to seek advice from his Cabinet colleagues, who should decide. Cabinet Ministers are accountable in a way which the commissioner cannot be. It is right that responsibility and accountability should rest at that level for this aspect of the freedom of information regime.

It is right and responsible that the Government accept that there will be rare occasions when they take the view that non-disclosure—even though the commissioner may feel that disclosure should take place—is appropriate. That is the view taken in other freedom of information regimes—not all—in particular that in New Zealand. An example was given by my noble and learned friend Lord Archer of Sandwell indicating what happened immediately after it was introduced. It was then, so the notes from the regional newspaper briefing indicate, that it was tightened up considerably, not entirely in ways parallel to ours. But we too have tight rules. It has rarely been used since then.

Lord Archer of Sandwell

I thank my noble and learned friend for giving way. Is he really saying that the safeguards which are now proposed in this Bill are as secure as the safeguards which the New Zealand Government found it necessary to install?

Lord Falconer of Thoroton

The two safeguards are different. There is, first, an Order in Council and, secondly, costs paid in a judicial review. Our proposals allow parliamentary scrutiny in relation to the exercise of the override because reasons have to he given; Ministers are accountable in Parliament. Costs in judicial review is not a protection. Where a person challenges the ministerial override in New Zealand, the government are obliged to pay the costs come what may. That is not present in our system but that does not make the difference between when it is an acceptable override and when it is not.

The government proposals, for the reasons I have given, ensure that the decision to issue an acceptance certificate would not be taken lightly. A Minister making any such decision would be required to inform the applicant of the reasons for his decision and, as I said, would be accountable to Parliament, his Cabinet colleagues, his constituents, members of his own party and the wider population for that decision.

The government amendments do not make provision on the face of the Bill for the certificate to be authorised by a Cabinet Minister acting collectively with Cabinet-rank colleagues. That point was raised in another place and my right honourable friend the Home Secretary said that he would consider it. In legislation passed by Parliament it is the Minister who is the decision-taker. As Members of the Committee are aware, when so acting, the Minister is bound by the convention of collective responsibility. The concept of a statutory duty to consult between Cabinet colleagues is not one which fits within that convention and it would disturb it in ways which we could not predict if we were to write such a provision into the Bill. I want to make it quite clear that guidance to Ministers will require that when acting as the "accountable person", they should consult Cabinet colleagues before signing a certificate.

Amendment No. 289 restricts the override to decisions by the commissioner relating to information held by government departments, the National Assembly for Wales and any public authorities designated by order by the Secretary of State for these purposes. The Government believe that such a power to designate further bodies by order is necessary to ensure that there is no gap in the protections required for exempt information which may be held by a body other than by a government department or the National Assembly for Wales, which it would be unacceptable to release without an avenue of final appeal on the public interest from the commission tribunal to a Cabinet Minister.

Amendment No. 352 would have the effect that the order designating further public authorities for the purpose of this clause must be made under the affirmative resolution procedure. The requirement for affirmative resolution ensures that the provision would be used only sparingly. It would be wrong to pretend that we can be definite as to when exactly such a power would be used. The case for designation is likely to be strongest in respect of public authorities in areas such as national defence, national security and law enforcement. Immediate examples which come to mind might include bodies such as the police information technology organisation and police forces. We shall, however, want to consult carefully before bringing forward any draft orders for consideration by Parliament under the affirmative resolution procedure.

Amendments Nos. 296, 297, 304 and 308 are consequential on Amendment No. 289.

I turn to Amendments Nos. 298 to 303, 306 and 307, tabled by the noble Lord, Lord Lucas. These amendments seek to limit the scope of the "override" in a way which is comparable to that provided by the government amendments. I hope that therefore he will not move them.

The noble Lord has tabled two further amendments. Amendment No. 306 would have the effect of requiring that an order must include a statement of the reasons for the order and must be made public. Amendment No. 307 would have the effect that an exception certificate issued by virtue of Clause 52(1) could never be exempt information under Part II of the Bill.

I accept that these amendments are intended to ensure that there is transparency about the issue of an exception certificate and the reasons why it has been signed. The amendments are, however, unnecessary. As I have already made clear, the grounds for the decision will in any case be in the public arena. That is because Clause 52(2), as substituted by government Amendment No. 289, provides that the accountable person shall inform the complainant of the reason for his decision at the same time or as soon as is practicable after giving the certificate to the commissioner. Therefore, the applicant receives the information almost immediately.

The Government have made it clear that Ministers would expect to have to explain to Parliament the grounds on which the certificate has been requested and approved. I hope that in the light of those explanations, the noble Lord, Lord Lucas, will not move his amendments.

As my noble and learned friend Lord Archer said, a number of other amendments do not fit into the mainstream but before dealing with them perhaps I may deal with the point raised by the noble Lord, Lord Goodhart, about judicial review. There is a requirement to give the reasons for the certificate. In giving those reasons, one need not give any information which would disclose the information that one is saying should not be disclosed. That is obvious common sense. However, that does not mean that one can avoid giving a full explanation as to why one is not disclosing the information.

As regards the courts' approach to judicial review, it is for them to determine what they regard as appropriate procedures in relation to such cases. Obviously, disclosure of the information to the other side would not be appropriate, but it is for the courts to develop procedures that they consider appropriate to deal with the relationship between them and a Minister who is being judicially reviewed in relation to such a claim. The procedure in relation to PII, where the court looks at the document without it being shown to one of the parties to the litigation, was developed by the courts.

Lord Goodhart

Is the Minister satisfied that, unless there is power in the Bill to enable the courts to do that, they will have power to insist on seeing information which is not open to the public?

Lord Falconer of Thoroton

I do not believe that it is necessary for a power to exist in the Bill in order for it to be possible for the document to be shown to the court. However, it is a matter for the court to develop what it believes are appropriate procedures. It must be remembered that the information commissioner will have seen it.

The other amendments grouped here propose changes which flow from the debate we have been having on Clause 52. As currently drafted, Clause 56(3) of the Bill provides that a complainant has a right of appeal against the commissioner's decision when she upholds the authority's decision not to disclose in the public interest. However, public authorities do not have the same option of bringing an appeal to the tribunal in relation to a decision or enforcement notice issued by the commissioner requiring them to disclose exempt information in the public interest.

Government Amendment No. 317 rectifies this by allowing for such an appeal. The right of appeal will exist for those few public authorities covered by the provisions at Clause 52. That should ensure that disagreements between the commissioner and such authorities are litigated in the tribunal and, if necessary, by the courts, rather than recourse being had to Clause 52.

Amendments Nos. 272 and 286 are both consequential upon Amendment No. 317. Amendment No. 272 has the effect that decision notices in respect of failure to disclose information in the public interest must contain particulars of the right of appeal and provides that any timetable for disclosure under the decision notice must have regard to arty appeal procedure. Amendment No. 286 has a similar effect in respect of enforcement notices.

I turn now to Amendments Nos. 273 and 288, tabled in the name of my noble and learned friend Lord Archer of Sandwell. The intention behind these amendments is clear: to negate the effect of Clause 52. However, I hope that I have made the Government's position plain in relation to that clause. Finally, I turn to Amendment No. 259. The noble Lord, Lord Cope, made clear that his intention in moving the amendment was to also to negate the effect of Clause 52. Again, I have made the Government's position clear in that respect. In the light of those arguments, I invite the noble Lord, Lord Cope, to withdraw his amendment.

Lord Norton of Louth

Before my noble friend responds, perhaps I may say that I am extremely grateful to the Minister. I feel vindicated because I believe that he has adopted the approach that I predicted he would. However, he has not made a clear case for the breadth of the clause. He made the case that there will be circumstances—such as those associated with national security—where there is clear justification for an override. But I do not see why the provision should be so broadly drawn. I have been trying to think about this in regard to the field of education; for example, why should it encompass this provision and in what circumstances would it apply? I do not understand why it cannot be more narrowly drawn simply to cover the cases mentioned by the Minister. Indeed, we could all be persuaded that there was clearly a case for such issues to be covered.

Lord Falconer of Thoroton

The clause is drawn in this way because the circumstances in which it will be necessary for the Cabinet, in effect, to override the information commissioner are not predictable from where we stand at present; in other words, there will not always be national security and police issues. Therefore, having identified the need in the extreme cases for the override, it would then be wrong to restrict it.

Contrary to what my noble friend Lord Brennan said, it is worth noting that the effect of this provision is not that any decision of the information commissioner can be overridden: the only decision of the information commissioner that can be overridden is one on the balance of the public interest under Clause 13. If, for example, the information commissioner determined that something was not covered by an exemption, then the ministerial override would never apply. Once it is not exempt, disclosure is automatic. The ministerial override under Clause 13 applies only where something is exempt and the Minister or the public authority concerned has refused to override the exemption in the public interest.

Lord Lucas

That is a wonderful argument. However, under Clause 34, anything that will cause a Minister distress is exempt.

Lord Cope of Berkeley

Although the hour is somewhat late, this has been one of the most important debates of the Committee stage. I am glad to say that the Minister made his case without resorting to the charge that the provisions were undemocratic, which caused such scorn during the course of the debate. We have also heard some extremely authoritative speeches from other speakers from all sides of the Committee—all of them against the Government's propositions. However, the clause is being substantially rewritten; indeed, the Minister just described a whole raft of amendments. We shall all have the opportunity, between now and Report stage, to study the re-written texts. As far as I am concerned that will make it much easier to follow exactly how far we have got, because the legislation has become somewhat confusing.

The debate has also been interesting for another reason. This is the first suggestion that I recall for quite some time that the present Cabinet actually discusses matters collectively. The information that we have received during recent months suggested that Cabinet meetings were extremely brief and that they simply waft things through. But now we are told that these matters at least will be discussed round the Cabinet table on each occasion, before the dreaded veto is applied. As I said, we have had a most interesting debate and we shall have a good opportunity to study the legislation more carefully between now and the Report stage. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 49 [Application for decision by Commissioner]:

[Amendments Nos. 260 and 261 not moved.]

Lord Lucas moved Amendment No. 262: Page 27, line 8, at end insert ("or Part VI").

The noble Lord said: In moving Amendment No. 262 I shall speak also to Amendments Nos. 269 and 271. I hope the Minister will tell me that Amendment No. 262 is not necessary. If it is, I think it should be accepted. Amendment No. 269 inserts Clause 11 into the provisions where the commissioner can decide that a public authority has failed to comply with any of the requirements of the section. I am concerned about the regulations which are to be made under the provision at the end of Clause 11 concerning how cost is to be calculated. In the past, public authorities have managed to avoid answering questions by vastly inflating the costs they think they will incur and by answering relatively simple questions. The best that I know of is a quote of some £5,000 or £6,000 to disclose the names of the 26 companies which had been subject to prosecutions or warnings as a result of breaking the BSE regulations.

The last of this rather disparate collection is Amendment No. 271, which states that a decision notice should be issued promptly. This comes back to time limits, which we have discussed before. If there are too many places in the Bill where there are no time limits set, either in the Bill or in any other form, we risk encouraging public authorities to play a game of spinning out time. If that were allowed to happen, the whole Bill would fall into disrepute. I beg to move.

Lord Falconer of Thoroton

Amendment No. 262 is based upon the proposition that separate rights of access to historical information are contained in Part VI. I do not think that that is right. All rights of access to information are contained in Part I. It is therefore not necessary to add a reference to Part VI in subsection (1) of Clause 49. Part VI merely modifies the rights in part I in certain circumstances. The right provided by the Bill applies to information in a historical record as much as to any other information, and the commissioner's powers are the same. I hope that that satisfies the noble Lord that the amendment is unnecessary.

Similarly, I believe that the noble Lord may have misunderstood Clause 49. That already provides that a complainant may apply for a decision from the commissioner about an authority's compliance with Part I of the Bill in respect of a request for information. That would cover the case where the authority was relying on a claim that Clause 11 applied to justify non-compliance with the request. Clause 11 is not referred to in Clause 49(4)(b) simply because there are no requirements in Clause 11 to which the notice could relate. That does not affect the basic position which I have set out. I hope that I have demonstrated that that amendment is equally unnecessary.

As regards Amendment No. 271, it would be impractical to impose an arbitrary time limit on the commissioner when, clearly, applications under Clause 49 will vary considerably in their complexity and therefore the length of time required to make a thorough investigation. The amendment states: A decision notice should be issued promptly, and in any event should not, without good cause, be issued later than the twentieth working day following the date of receipt of the application". I have every sympathy with what is clearly the intention behind the amendment, which is to ensure that complaints made to the commissioner are dealt with as promptly as possible. But, even if it were practicable to find a formula to ensure that decisions were made quickly but without jeopardising the thoroughness of the investigation, it is not necessary to do so because, if the commissioner fails in her duties, she is answerable to Parliament. In those circumstances, I do not think that the amendment is appropriate.

Lord Lucas

I shall study those replies with interest. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 263 to 269 not moved.]

Lord Falconer of Thoroton moved Amendment No. 270: Page 27, line 27, leave out (", 13").

On Question, amendment agreed to.

[Amendment No. 271 not moved.]

Lord Falconer of Thoroton moved Amendment No. 272: Page 27, line 40, leave out subsection (7).

On Question, amendment agreed to.

[Amendment No. 273 not moved.]

Clause 49, as amended, agreed to.

Clause 50 [Information notices]:

[Amendments Nos. 274 to 279 not moved.]

Clause 50 agreed to.

Clause 51 [Enforcement notices]:

[Amendments Nos. 280 to 285 not moved.]

Lord Falconer of Thoroton moved Amendment No. 286: Page 29, line 14, leave out subsection (4).

On Question, amendment agreed to.

[Amendments Nos. 287 and 288 not moved.]

Clause 51, as amended, agreed to.

Clause 52 [Exception from duty to comply with decision notice or enforcement notice]:

Lord Falconer of Thoroton moved Amendments Nos. 289 and 290: Page 29, line 19, leave out from beginning to ("shall") in line 21 and insert— ("(1) This section applies to a decision notice or enforcement notice which—

  1. (a) is served on—
    1. (i) a government department,
    2. (ii) the National Assembly for Wales, or
    3. (iii) any public authority designated for the purposes of this section by an order made by the Secretary of State, and
  2. (b) relates to a failure, in respect of one or more requests for information—
    1. (i) to comply with section 1(1)(a) in respect of information as respects which any provision of Part II provides that the duty to confirm or deny does not arise, or
    2. (ii) to comply with section 1(1)(b) in respect of exempt information.
(1A) A decision notice or enforcement notice to which this section applies"). Page 29, line 22, leave out ("day on which the notice was given to the public authority") and insert ("effective date").

On Question, amendments agreed to.

[Amendment No. 291 not moved.]

The Deputy Chairman of Committees (Baroness Cox)

If Amendment No. 292 is agreed to, I cannot call Amendment No. 293 because of pre-emption.

Lord Falconer of Thoroton moved Amendment No. 292: Page 29, line 25, leave out from ("that") to end of line 26 and insert ("in respect of the request or requests concerned, there was no failure falling within subsection (1)(b).").

On Question, amendment agreed to.

[Amendment No. 293 not moved.]

Lord Falconer of Thoroton moved Amendment No. 294: Page 29, line 26, at end insert— ("(1B) In subsection (1A) "the effective date", in relation to a decision notice or enforcement notice, means—

  1. (a) the day on which the notice was given to the public authority, or
  2. (b) where an appeal under section 56 is brought, the day on which that appeal (or any further appeal arising out of it) is determined or withdrawn.
(1C) Before making an order under subsection (1)(a)(iii), the Secretary of Slate shall—
  1. (a) if the order relates to a Welsh public authority, consult the National Assembly for Wales,
  2. (b) if the order relates to the Northern Ireland Assembly, consult the Presiding Officer of that Assembly, and
  3. (c) if the order relates to a Northern Ireland public authority, consult the First Minister and deputy First Minister in Northern Ireland.").

On Question, amendment agreed to.

[Amendment No. 295 not moved.]

Lord Falconer of Thoroton moved Amendment No. 296: Page 29, line 28, leave out ("(1)") and insert ("(1A)").

On Question, amendment agreed to.

The Deputy Chairman of Committees

If Amendment No. 297 is agreed to, I cannot call Amendments Nos. 298 to 303 because of pre-emption.

Lord Falconer of Thoroton moved Amendment No. 297: Page 29, line 35, leave out subsection (4) and insert— ("(4) In this section "the accountable person"—

  1. (a) in relation to a Northern Ireland department or any Northern Ireland public authority, means the First Minister and deputy First Minister in Northern Ireland acting jointly, and
  2. (b) in relation to the National Assembly for Wales or any Welsh public authority, means the Assembly First Secretary.
  3. (c) in relation to any other public authority, means—
    1. (i) a Minister of the Crown who is a member of the Cabinet, or
    2. (ii) the Attorney General, the Advocate General for Scotland or the Attorney General for Northern Ireland.").

On Question, amendment agreed to.

[Amendments Nos. 298 to 303 not moved.]

Lord Lucas moved Amendment No. 304: Page 30, line 29, leave out subsections (5) and (6).

The noble Lord said: I am extremely grateful to the noble and learned Lord, Lord Falconer of Thoroton, for having constructed Amendment No. 297 in a way which allowed my amendment to stand as a valid part of the Bill. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 305 to 307 not moved.]

Lord Falconer of Thoroton moved Amendment No. 308: Page 30, leave out lines 41 to 45.

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

On Question, amendment agreed to.

Clause 52, as amended, agreed to.

Clause 53 [Failure to comply with notice]:

[Amendment No. 309 not moved.]

Clause 53 agreed to.

Clause 54 agreed to.

Schedule 3 [Powers of entry and inspection]:

Lord Lucas moved Amendment No. 310: Page 62, line 3, after ("sub-paragraph,") insert— ("( ) to copy any information held in electronic format, or to seize the equipment containing that information if a copy cannot conveniently be made,").

The noble Lord said: This merely lifts a part out of another Bill that was debated in this Session—I think that it was the then electronic commerce Bill. If I am misconceived in suggesting that this measure should be included in this Bill, I shall not require much convincing. I am already convinced that Amendment No. 311 is misconceived and I shall not speak to it or move it. I beg to move.

Lord Bassam of Brighton

I think that the relevant Bill might have been the "rest in peace" Bill.

Amendment No. 310 is connected with powers of entry and inspection which Schedule 3 of the Bill will give to the information commissioner. The schedule provides that the commissioner will have the same powers for these purposes as she currently enjoys as Data Protection Commissioner. I am not aware that this has been a particular problem or issue for her, and in the absence of any such reported concern it would not be appropriate to make provision on the basis that the noble Lord has suggested. I trust that the noble Lord will withdraw the amendment.

Lord Lucas

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 311 not moved.]

Schedule 3 agreed to.

Clause 55 [No action against public authority]:

[Amendment No. 312 not moved.]

Clause 55 agreed to.

Clause 56 [Appeal against notices served under Part IV]:

Lord Hunt of Wirral moved Amendment No. 313: Page 31, line 26, leave out ("or the public authority").

The noble Lord said: We now move to that part of the Bill which relates to appeals. The purpose of this amendment is to leave out the words "or the public authority" in Clause 56(1) to ensure that the public authority has no right of appeal to the commissioner against a notice. The whole purpose behind the commissioner's appointment is to assist disclosure, not for her to get tied up in a process of administrative appeals from public authorities.

I am aware that this amendment is being discussed at a late hour. I very much welcome the fact that the Government Chief Whip is present because I hope that on Report we may find a more amenable time of day to discuss this important Bill rather than having it squeezed on to the end of other Bills. There are a number of us, including those on the Government Benches, who believe that this is a most important Bill that ought to be discussed not only in prime time but with sufficient time allocated to it. As I say, the hour is late and I have no wish to detain people longer than is necessary.

Therefore I simply say that I believe that it is inappropriate that public authorities which may be reluctant to give up the information that they should disclose should be able to tie up the commissioner in handling appeals, and, indeed, the tribunal in hearing them. The public authorities would already have been instructed by the commissioner to release information and should do so. The risk is that the commissioner could well be tied up by automatic appeals by public authorities creating a backlog and forcing members of the public and/or the commissioner to prepare for tribunal hearings.

As a lawyer, I have to declare my vested interest because this would be of enormous benefit to the legal profession and those with deep pockets but is hardly likely to give effect to the main purpose of the Bill. I believe that it is only appropriate for the public to appeal to the tribunal; and this would create a firm presumption in favour of disclosure. I beg to move.

11 p.m.

Lord Bassam of Brighton

I had intended to deal with all the amendments in this group, if that is for the convenience of the noble Lord, Lord Lucas.

This part of the Bill provides for an information tribunal to consider appeals against determinations of the information commissioner. The effect of Amendments Nos. 313 and 315 taken together would be to deny public authorities an avenue of independent review while allowing the right for complainants to appeal against decision notices to remain.

We have provided for an information tribunal which will be able to look again at any complaint about decisions under this Bill. That, as the noble Lord will agree, is no more than fairness demands, provides natural justice and should be available, we believe, to all parties. The amendments would remove one side of that commitment.

Another unintended consequence would be that public authorities would also have removed from them the opportunity—it is a most important point—to appeal to the High Court on a point of law. That is an important consideration. As drafted, Clause 58 provides that such access is consequential on an appeal to the tribunal. The removal of such a right seems to the Government to be both inequitable and unjust. I ask the noble Lord to withdraw the amendment.

Amendment No. 314 is wholly impracticable. It would give the appellant very little time to consider the commissioner's decision, let alone what grounds of appeal would be appropriate, and certainly insufficient time to take legal or other advice. Nor is any account taken of special circumstances that might delay an appeal being lodged. The impact of such an amendment would surely result in fewer well considered appeals being lodged in time and larger numbers of hurried appeals being lodged containing somewhat ill-conceived grounds. I cannot imagine that this would be the noble Lord's intention or a desirable outcome.

Again we believe that Amendment No. 318 is completely impracticable. It is in no one's interests surely that the appeal procedure should be dragged out unnecessarily. But, equally, it is not in the interests of appellants, respondents or the cause of natural justice that tribunals should be under an unreasonable time constraint of 20 working days to reach a hurried decision. It is perhaps worth pointing out to the Committee that provisions dealing with the speed with which the tribunal hears an appeal will be dealt with by secondary legislation.

I hope that with those explanations noble Lords will feel able not to press the amendments.

Lord McNally

Before the Minister sits down, my noble friend Lord Goodhart mutters that he does not in principle like one-sided rights of appeal. I leave the noble Lord, Lord Hunt, to think about that.

There is a point here which causes concern. Public authorities have deep pockets. Unless education changes the psychology of public authorities, there may be a temptation to go to appeal. If a public authority showed that tendency to appeal—if not frivolously, far too often and over protectively— would be there be any sanction?

Lord Bassam of Brighton

There would be no sanction other than the fact that it would cost the public authority. I do not believe that a responsible public authority would want to incur that additional cost.

It is also worth considering what happens in the event of a perverse decision. It must be right that the matter should be referred to a higher court so that the perversity can be dealt with. We all accept that that is very unlikely in most circumstances, but it could happen and it might not be in the wider public interest.

Lord Lucas

The Minister seemed to elevate Amendment No. 318 to a matter of enormous public importance—almost a matter of life and death. We are dealing with a tribunal that will decide between an applicant who wants a piece of information and wants it now and a very well funded public authority with every incentive to string things out and cause delay. Systems of tribunals and courts are generally pretty easy to delay with a bit of money, science and legal expertise.

A precedent can be found in the Housing Grants, Construction and Regeneration Act 1996, which was passed when I was on the Government Front Bench. It provided for arbitration in construction disputes between two such parties—a very powerful party intent on stringing things out as long as possible and a small contractor in desperate need of the money. That Act imposes a time limit on the tribunal for the same reasons as lie behind the amendment. I believe that there was a consensus among officials and the industry at that time that there should be a time limit. Surely that is a precedent worth looking at.

Lord Hunt of Wirral

This has been a valuable opportunity to pause for a moment and consider the points raised by my noble friend Lord Lucas and the noble Lord, Lord McNally. I should like to reflect on them, just as I hope that the Minister will reflect on the burden of our arguments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 314 and 315 not moved.]

Lord Falconer of Thoroton moved Amendment No. 316: Page 31, line 30, at end insert— ("( ) In relation to a decision notice or enforcement notice which relates—

  1. (a) to information to which section (Decisions relating to certain transferred public records) applies, and
  2. (b) to a matter which by virtue of subsection (3) or (4) of that section falls to be determined by the responsible authority instead of the appropriate records authority,
subsections (1) and (2) shall have effect as if the reference to the public authority were a reference to the public authority or the responsible authority.").

On Question, amendment agreed to.

Lord Archer of Sandwell moved Amendment No. 317: Page 31, line 31, leave out subsection (3).

The noble and learned Lord said: If my noble and learned friend the Minister wishes me to move the amendment, in my usual spirit of helpfulness I shall be happy to do so. I beg to move.

On Question, amendment agreed to.

Clause 56, as amended, agreed to.

Clause 57 [Determination of appeals]:

[Amendment No. 318 not moved.]

Clause 57 agreed to.

Clause 58 agreed to.

Clause 59 [Appeals against national security certificate]:

[Amendments Nos. 319 and 320 not moved.]

Clause 59 agreed to.

Clause 60 agreed to.

Schedule 4 agreed to.

Clause 61 [Interpretation of Part VI]:

Lord Lucas moved Amendment No. 321: Page 33, line 4, at end insert ("unless—

  1. (a) the dates of creation of the records span more than two years; and
  2. (b) the file or other assembly may reasonably be separated into older and more recent parts.").

The noble Lord said: This is merely a technical suggestion that there should be an obligation to look at splitting long-running files if that is appropriate.

Amendments Nos. 322, 323, 324 and 326 cover similar areas, providing that once the 30-year limit has been reached, all sorts of exemptions should no longer apply.

I shall listen with interest to what the Government have to say about that idea in general. However, I draw their particular attention to the inclusion of Clause 20 in Amendment No. 322. I really do not see how Clause 20 can be an active source of exemptions after 30 years.

On Amendment No. 328, I shall listen with interest to what the Government have to say. I beg to move.

Lord Bassam of Brighton

I recognise the concern behind Amendment No. 321 in the name of the noble Lord, Lord Lucas. But I believe that the Bill as currently drafted, backed up by the Lord Chancellor's code of practice, allows an appropriate amount of flexibility in what is described as records management.

The Lord Chancellor's code of practice will provide guidance to authorities on the practice of records management. A working draft of the code recommends that as a general rule, files should be closed after five years, and that, if action continues, a further file should be opened.

Moreover, the commissioner will be able to issue practice recommendations against authorities which fail to act in accordance with the code. A statutory requirement to close files every two years would not be sensible, for example, where an issue was long running and regularly yet infrequently updated. In that case, it would not be administratively useful to split one file into many parts.

Finally in relation to this amendment, I should like to emphasise that information contained in records is accessible under freedom of information provisions whether the record has been designated as "historical"; that is, over 30 years old, or not. While the Bill disapplies certain exemptions in respect of historical records, it is also generally true that, over time, the sensitivity of information will decrease, so that more information will become available as the years pass. Having heard that explanation, I ask the noble Lord to withdraw the amendment.

I turn now to Amendments Nos. 322, 323, 324, 326 and 328 which would disapply certain additional exemptions in respect of information contained in historical records. Without the continuation of those exemptions, information could be disclosed which was necessary to safeguard the defence of the UK, or which could prejudice international relations, the economy, or the environment. We argue that that cannot be in the public interest.

In each case there are good reasons for the exemptions to apply beyond the 30-year point. Disapplication could result in prejudice being caused to the national interest, and so I ask the noble Lord not to press those amendments.

Lord Lucas

I am extremely grateful for those explanations. The noble Lord read his brief extremely well. But I still do not understand how information falling under Clause 20—information intended for future publication—can possibly be a good reason for exemption 30 years after the creation of the information. I do not insist on an answer now, but I should very much like to know why Clause 20 is not included in the list at the head of Clause 62.

I am reminded also that one of the ongoing problems is the lack of public access to the 1911 census data.

Lord Bassam of Brighton

I shall investigate the circumstances surrounding that and get the noble Lord an answer promptly.

Lord Lucas

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 61 agreed to.

Clause 62 [Removal of exemptions: historical records generally]:

[Amendments Nos. 322 to 326 not moved.]

Lord Falconer of Thoroton moved Amendment No. 327: Page 33, line 12, leave out ("seventy-five") and insert ("sixty").

On Question, amendment agreed to.

[Amendment No. 328 not moved.]

Clause 62, as amended, agreed to.

Clause 63 [Removal of exemptions: historical records in public record offices]:

Lord Falconer of Thoroton moved Amendment No. 329: Page 33, line 27, leave out ("13(2)") and insert ("(Effect of exemptions)(3)").

On Question, amendment agreed to.

Clause 63, as amended, agreed to.

11.15 p.m.

Clause 64 [Decisions as to refusal of discretionary disclosure of historical records]:

Lord Falconer of Thoroton moved Amendments Nos. 330 and 331: Page 33, line 29, leave out from beginning to ("authority") in line 30 and insert ("Before refusing a request for information relating to information which is contained in a historical record and is exempt information only by virtue of a provision not specified in section (Effect of exemptions)(3), a public"). Page 33, line 35, leave out ("Northern Ireland Minister responsible for public records in Northern Ireland") and insert ("appropriate Northern Ireland Minister").

On Question, amendments agreed to.

[Amendment No. 332 had been withdrawn from the Marshalled List.]

Lord Falconer of Thoroton moved Amendment No. 332A: Page 33, line 36, at end insert— ("( ) This section does not apply to information to which section (Decisions relating to certain transferred public records) applies.").

The noble and learned Lord said: Amendment No. 332A is necessary in order to correct technical deficiencies in the way in which the clauses are cross-referenced in the amendment which has been withdrawn. The amendment does not in any way affect the substance of the amendment that it replaces which has already been debated. I apologise if the inclusion of a technically deficient amendment in the Marshalled List has caused any confusion. The substantive effect of the amendment is to ensure that Clause 64 and what will become Clause 65, which is now entitled "Decisions relating to certain transferred public records", are mutually exclusive. Clause 64 refers to historical records in the hands of all public authorities, except for those transferred public records in the hands of the Public Record Office which are dealt with under Clause 65. I beg to move.

On Question, amendment agreed to.

Clause 64, as amended, agreed to.

Lord Falconer of Thoroton moved Amendment No. 333: After Clause 64, insert the following new clause—