HL Deb 25 October 2000 vol 618 cc467-73

(" .—(1) The Commissioner may disclose to a person specified in the first column of the Table below any information obtained by, or furnished to, the Commissioner under or for the purposes of this Act or the Data Protection Act 1998 if it appears to the Commissioner that the information relates to a matter which could be the subject of an investigation by that person under the enactment specified in relation to that person in the second column of that Table.

TABLE
Ombudsman Enactment
The Parliamentary Commissioner for Administration. The Parliamentary Commissioner Act 1967 (c. 13).
The Health Service Commissioner for England. The Health Service Commissioners Act 1993 (c. 46).
The Health Service Commissioner for Wales. The Health Service Commissioners Act 1993 (c. 46).
The Health Service Commissioner for Scotland. The Health Service Commissioners Act 1993 (c. 46).
A Local Commissioner as defined by section 23(3) of the Local Government Act 1974. Part III of the Local Government Act 1974 (c. 7).
The Commissioner for Local Administration in Scotland. Part II of the Local Government (Scotland) Act 1975 (c. 30).
The Scottish Parliamentary Commissioner for Administration. The Scotland Act 1998 (Transitory and Transitional Provisions) (Complaints of Maladministration) Order 1999 (S.I. 1999/1351).
The Welsh Administration Ombudsman. Schedule 9 to the Government of Wales Act 1998 (c. 38).
The Northern Ireland Commissioner for Complaints. The Commissioner for Complaints (Northern Ireland) Order 1996 (S.I. 1996/1297 (N.I. 7)).
The Assembly Ombudsman for Northern Ireland. The Ombudsman (Northern Ireland) Order 1996(S.I. 1996/1298 (N.I. 8)).

(2) Schedule (Disclosure of information by ombudsmen) (which contains amendments relating to information disclosed to ombudsmen under subsection (1) and to the disclosure of information by ombudsmen to the Commissioner) has effect.").

The noble and learned Lord said: We believe it is likely that complaints surrounding disclosure of information by public authorities will often be closely linked to issues of maladministration. The Government believe it is right to amend the Bill to allow information to be shared between the commissioner and specified ombudsmen.

The new clause proposed by Amendment No. 341 has the effect of allowing the information commissioner to disclose to specified public sector ombudsmen any information she has obtained or which has been given to her under and for the purposes of the FOI Bill and the Data Protection Act 1998, if it appears to her that the information in her possession relates to a matter which could be the subject of an investigation by that public sector ombudsman under the enactment relating to that ombudsman.

The ombudsmen specified have been chosen because they are able to investigate public authorities within the meaning of the FOI Bill. The new schedule proposed by Amendment No. 366 amends the relevant legislation relating to the specified ombudsmen to provide that they are similarly empowered to disclose information to the information commissioner.

Amendment No. 367 is consequential upon the new clause and the new schedule. It has the effect that they will come into force two months after the date of Royal Assent to the Bill. These amendments do not extend the remit of either the information commissioner or the public sector ombudsmen, but simply enable them to exercise their powers more efficiently. They will mean that the commissioner and the specified ombudsmen will have the powers necessary to carry out investigations effectively and without any unnecessary duplication of effort.

I hope I have convinced the Committee of the necessity for these amendments. I beg to move.

On Question, amendment agreed to.

[Amendment No. 342 not moved.]

Clause 75 [Offence of altering etc. records with intent to prevent disclosure]:

Lord Falconer of Thoroton moved Amendment No. 343: Page 39, line 3, leave out ("or 13").

On Question, amendment agreed to.

[Amendments Nos. 344 to 346 not moved.]

Clause 75, as amended, agreed to.

Clause 76 [Saving for existing powers]:

[Amendment No. 347 not moved.]

Clause 76 agreed to.

Clause 77 [Defamation]:

Lord Falconer of Thoroton moved Amendment No. 348: Page 39, line 25, leave out ("or 13").

On Question, amendment agreed to.

Lord Lucas moved Amendment No. 349: Page 39, line 28, at end insert ("or substantial negligence").

The noble Lord said: Under Clause 77, a public authority is exempted from action for defamation unless the publication is shown to have been made with malice. However, I do not see why it should get away with substantial negligence. Malice clearly should exempt it from privilege but if a public authority is so negligent in accepting a third-party statement as true and then passes it on to another person, thereby creating a defamation, I do not see why it should escape. There must be some limits on the negligence of a public authority under such circumstances. I beg to move.

Lord Bassam of Brighton

Clause 77 is necessary in order to remove the anomaly where a public authority could find itself exposed to an action for defamation by a third party simply because it had complied with a statutory duty to disclose information. Removing this immunity in respect of substantially negligent disclosures, as proposed in Amendment No. 349, would be utterly perverse. If the authority has acted to fun its statutory duty, why should it also be open to an action for defamation by a third party?

It is not clear exactly what standard of legal practice the concept of substantial negligence is supposed to provide for. However, I am advised that in any case publication being made with substantial negligence is not one with which the law of tort is familiar. Furthermore, it would not be possible for the publication to be made negligently when it has been made pursuant to a statutory obligation to disclose. Those two issues cannot sit and rest easily together.

In order to reassure the Committee, I emphasise that the Bill provides strong safeguards for the disclosure of personal information. Such information may not be disclosed to someone other than the person to whom it relates unless that person would have a right of access to it under the Data Protection Act 1998. However, that condition can be side-stepped if the public interest so required and its disclosure was in accordance with the data protection principles. It is also worth reminding the Committee that the Bill provides strong protection for commercial interests through Clause 41.

I believe that the amendment is unworkable. It deals in terms which are unknown within this area of law. I suggest to the noble Lord that he should withdraw his amendment and think again.

Lord Lucas

I am afraid that I do not find the noble Lord's argument at all cogent. If we are looking at a circumstance in which publication can be made with malice, it can surely be made negligently. If the noble Lord is saying that he cannot imagine how a publication can be made negligently when it is made in accordance with the Act, how on earth can it be made with malice when it is made in accordance with the Act?

If, for the moment, we accept that the clause is drafted to deal with a real possibility—that is, that the communication can be made with malice—it must be possible to make it with negligence. Those two commonly go together, as anyone involved in publication will confirm. One can get caught for malice where one has some interest in communicating bad things about the person in respect of whom one is passing on information. One can then get caught for negligence—perhaps that is not the right word but I am sure that the noble and learned Lord could provide the right one—when one has not taken the trouble to ascertain that the information being passed on is in any way correct and one should have taken such trouble.

Those are the two main issues about which we poor publishers receive nasty letters from people's lawyers. I do not see that one can have a set of circumstances in which one is possible but not the other. I believe that both should be covered by the clause or the clause does not belong in the Bill at all. I hope that the noble Lord will be able to say something more or perhaps we ought to be counting how many gentlemen the Chief Whip has at his disposal.

Midnight

Lord Goodhart

The noble Lord, Lord Lucas, is quite right to say that if it is disclosed under a statutory duty, it is very hard to see how it can be disclosed maliciously. But surely the answer to that is that, rather than adding the word "negligence", we ought to delete the words, unless the publication is shown to be made with malice", as being irrelevant.

Lord Bassam of Brighton

I am reminded that an authority cannot negligently disclose information when it is purposely disclosing such information. However, I am also advised that an authority can be doing something with malice. That is the point. I believe that the noble Lord has failed to follow part of the argument. That is what I said earlier. I made it clear that the substantial negligence featured in the noble Lord's argument could not be applied to the law of tort in the way he suggested. Perhaps the noble Lord should study what has been said and reflect upon it.

Lord Lucas

Given the lack of any look of fear in the eyes of the Chief Whip, perhaps I should agree to do that. However, I should be most grateful if the noble Lord would write to me giving me an example of a circumstance under which a local authority might—

Lord Bassam of Brighton

Of course, the noble Lord knows that I am always more than happy to engage in correspondence with him, especially if it would save us endless hours of dancing on the head of a pin.

Lord Lucas

Perhaps the Minister could give me an example of how the mention of "malice" in Clause 77 would act in an actual, practical circumstance; in other words, how malice could apply in such circumstances. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clauses 77, as amended, agreed to.

Clause 78 agreed to.

Clause 79 [Application to government departments, etc.]:

Lord Falconer of Thoroton moved Amendments Nos. 350 and 351: Page 39, line 39, leave out subsection (1) and insert— ("(1) For the purposes of this Act each government department is to be treated as a person separate from any other government department. (1A) Subsection (1) does not enable—

    471
  1. (a) a government department which is not a Northern Ireland department to claim for the purposes of section 39(1)(b) that the disclosure of any information by it would constitute a breach of confidence actionable by any other government department (not being a Northern Ireland department), or
  2. (b) a Northern Ireland department to claim for those purposes that the disclosure of information by it would constitute a breach of confidence actionable by any other Northern Ireland department.").
Page 40, line 7, leave out subsection (4).

On Question, amendments agreed to.

Clause 79, as amended, agreed.

Clause 80 [Orders and regulations]:

Lord Falconer of Thoroton moved Amendments Nos. 352 to 354: Page 40, line 13, after ("(7),") insert (" 52(1)(a)(iii)"). Page 40, line 13, leave out (" 43(1) or (2)"). Page 40, line 14, at end insert ("or 73(3)").

On Question, amendments agreed to.

Clause 80, as amended, agreed to.

Lord Falconer of Thoroton moved Amendment No. 355: After Clause 80, insert the following new clause—

MEANING OF "WELSH PUBLIC AUTHORITY"

(" .—(1) In this Act "Welsh public authority" means—

  1. (a) any public authority which is listed in Part II, III, IV or VI of Schedule 1 and whose functions are exercisable only or mainly in or as regards Wales, other than an excluded authority, or
  2. (b) any public authority which is an Assembly subsidiary as defined by section 99(4) of the Government of Wales Act 1998.

(2) In paragraph (a) of subsection (1) "excluded authority" means a public authority which is designated by the Secretary of State by order as an excluded authority for the purposes of that paragraph.

(3) Before making an order under subsection (2), the Secretary of State shall consult the National Assembly for Wales.").

On Question, amendment agreed to.

Clause 81 [Interpretation]:

Lord Falconer of Thoroton moved Amendment No. 356: Page 40, line 34, at end insert— (""appropriate Northern Ireland Minister" means the Northern Ireland Minister in charge of the Department of Culture, Arts and Leisure in Northern Ireland").

On Question, amendment agreed to.

[Amendment No. 357 had been withdrawn from the Marshalled List.]

Lord Falconer of Thoroton moved Amendment No. 357A: Page 40, line 34, at end insert— (""appropriate records authority", in relation to a transferred public record, has the meaning given by section (Special provisions relating to public records transferred to Public Record Office, etc)(5);").

The noble and learned Lord said: This amendment, and Amendments Nos. 363A and 364A are also necessary in order to correct technical deficiencies. The amendments do not in any way affect the substance of the amendments which they replace and which we have already debated. Once again, I offer my apologies to the Committee for the inclusion of technically deficient amendments. The substantive effect of these amendments is simple. The three terms are already defined in the clause. The amendments include a reference to these definitions in Clause 81, the definition clause. This ensures that all definitions are gathered in one place, thus aiding the user of the legislation. I beg to move.

Lord Lucas

I only wish that the noble Lord, Lord Bassam, had been in a position to receive that sort of advice in relation to the RIP Bill.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 358 to 360: Page 40, line 38, leave out (" 1(4)") and insert (" 1(8)"). Page 40, line 41, at end insert— (""executive committee", in relation to the National Assembly for Wales, has the same meaning as in the Government of Wales Act 1998;"). Page 41, line 16, at end insert— (""Northern Ireland public authority" means any public authority, other than the Northern Ireland Assembly or a Northern Ireland department, whose functions are exercisable only or mainly in or as regards Northern Ireland and relate only or mainly to transferred matters;").

On Question, amendments agreed to.

[Amendment No. 361 not moved.]

Lord Falconer of Thoroton moved Amendment No. 362: Page 41, line 19, at end insert— (""public record" means a public record within the meaning of the Public Records Act 1958 or a public record to which the Public Records Act (Northern Ireland) 1923 applies;").

On Question, amendment agreed to.

[Amendment No. 363 had been withdrawn from the Marshalled List.]

Lord Falconer of Thoroton moved Amendment No. 363A Page 41, line 21, at end insert— (""responsible authority", in relation to a transferred public record, has the meaning given by section (Special provisions relating to public records transferred to Public Record Office, etc)(5);").

On Question, amendment agreed to.

[Amendment No. 364 had been withdrawn from the Marshalled List.]

Lord Falconer of Thoroton moved Amendments Nos. 364A and 365: Page 41, line 31, at end insert— (""transferred public record" has the meaning given by section (Special provisions relating to public records transferred to Public Record Office, etc)(4);"). Page 41, line 32, at end insert— (""Welsh public authority" has the meaning given by section (Meaning of "Welsh public authority");").

On Question, amendments agreed to.

Clause 81, as amended, agreed to.

Clauses 82 and 83 agreed to.

Lord Falconer of Thoroton moved Amendment No. 366: Before Schedule 7, insert the following new schedule—