Freedom of Information Bill (Hansard, 25 October 2000)

HL Deb 25 October 2000 vol 618 cc407-76 407

§ 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

§ (Viscount Oxfuird) in the Chair.]

§ Clause 36 [Health and safety]:

§ [Amendment No. 204 not moved.]

§ Clause 36 agreed to.

§ Clause 37 [Environmental information]:

§ [Amendment No. 205 not moved.]

408

§ On Question, Whether Clause 37 shall stand part of the Bill?

§ Lord Lucas
I gave notice of my intention to oppose the Motion that this clause should stand part of the Bill in order to give the Government an opportunity to enlarge on how this mechanism will work. It is a pity that this clause has to be included in the Bill at all; it has been put in place only because the Government have moved so far back from what they said they would do on freedom of information that they have been forced to leave isolated this one commitment. They must be open about environmental information and they cannot shrink away from that. Here we see a small example of what all noble Lords would wish had been repeated throughout the Bill. It serves as a memento to preserve the failures of nerve suffered by the Government on the whole question of freedom of information. That is a sorry position.
I am concerned that we may inadvertently reduce, to a certain extent, the rights of the citizen. Parts of the Bill provide for rights of review by the information commissioner as regards the speed at which information should be released. I should be grateful for some comfort from the Minister in the form of a reassurance that what will happen will in every way be an advance on what is set out in the Bill. Furthermore, I seek a reassurance that no inquirer will be faced with a situation in which, because Clause 37 is in place, he might lose some of his rights under the Bill because those rights are not duplicated in the secondary legislation to be introduced in a later provision.

§ The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton)
It will come as no great surprise to the noble Lord that I cannot accept his analysis. Both in opposition and in government, my party has built up an enviable record as regards its efforts to ensure that citizens have fair, reasonable and proper access to environmental information. In Government, we are committed to implementing the United Kingdom's international obligations under the EU directive on environmental information and in particular the Aarhus Convention.
This will be done through regulations to be made under Clause 73 rather than directly through the general provisions of the Bill. The Bill will continue to have an effect because even if information need not be disclosed under the regulations, its disclosure may still be required under the public interest test. Copies of the consultation paper entitled Proposals for a Revised Public Access to Environmental Information Regime were placed in the Library of your Lordships' House on the 10th of this month. Those proposals inform our discussions and debates.
Clause 37 is an essential component of what we regard as sensible arrangements which will ensure that the public has proper access to information about environmental issues and that we continue to observe our international responsibilities. The exemption of such information from the freedom of information requirements under Clause 37 will prevent any confusion as to the intended relationship between the 409 rules governing access to environmental information and the FOI regime. Perhaps I may stress that the exemption provided for by Clause 37 would not result in environmental information being withheld. Let me also reassure noble Lords that any fees charged under those regulations will be made subject to the test of reasonableness and will have to be made known in advance.
I hope that we shall not need to conduct a lengthy discussion on this matter. I believe that our reputation and standing on this issue is well known, well established and strong. I hope that the noble Lord will see that our approach here is reasonable. I trust that he has now had an opportunity to look at the consultation paper which, as I said earlier, has been placed in the Library of the House.

§ Lord Cope of Berkeley
However that may be, we were told that the Government initially proposed to incorporate these regulations into the Bill but that they came to realise that the Bill was so weak that that would not comply with either the EU directive or the convention. That is why they have had to rely still on the regulations. The Minister may be right so far as concerns environmental information, but that is because of the regulations. That tells us a lot about the rest of the Bill.

§ Clause 37 agreed to.

§ Clause 38 [Personal information]:

§ The Earl of Northesk moved Amendment No. 206: Page 21, line 39, leave out paragraph (a) and insert— ("(a) that the disclosure of information to a person would be likely to result in a public authority breaching its obligations to respect the private life of another person as set out in Article 8 of Part I of Schedule 1 to the Human Rights Act 1998, and").

§ The noble Earl said: Our purpose here is simple. Clause 38 is concerned with personal information. Accordingly, there is an argument for suggesting that the current drafting of the Bill, with its reference to the data protection principles, should be replaced with a reference to the underlying—and maybe more important—need to protect the right to privacy. This is what the amendment seeks to do.

§ There are some subsidiary arguments. We are often told by the Government, in terms, that the Human Rights Act is the most important and most significant constitutional advance that has been achieved in the current Parliament. Equally, it is reasonable to suggest that the data protection principles were derived substantially from the ECHR. Therefore there should be a presumption that the Human Rights Act has some measure of primacy over the data protection principles. In effect, it could be interpreted as being the appropriate source, if not statutory authority, for the application and interpretation of the terms of Clause 38.

§ Indeed, by using Article 8 of Schedule 1 to the Human Rights Act attention in Clause 38 might be much more properly focused on the necessity to protect personal information about someone's private life rather than broader issues such as the identities of 410 public officials which, I understand, under the terms of the Data Protection Act, qualify as "personal data". Hence the amendment. I beg to move.

§ Lord Lucas
My Lords, I speak to Amendment No. 208 in this group, which stands in my name. The amendment seeks to ensure that where the exemption applied the public authority would have a duty to ask the person with the ability to release that personal information whether they were prepared to do so.
The most recent example I can give is a Written Question in which I asked the Department of Health whether a particular sufferer from BSE had "met met" or "met val" at codon 129 of her prion gene. The Department of Health said that it could not answer that question because it was seeking personal information. I asked the department to ask the person whose personal information it was whether she was prepared to release the information. I had been talking to the person who had the authority to release the information and knew that she was prepared to release it, but the Department of Health said that it would not ask her; it refused to ask for the information. Had the department asked for the information, it would have been available and the department would have been able to tell me.
I was aware of the information, but I was interested in the reaction of the Department of Health. This particular patient is "met val" and not "met met" like every other BSE patient who has been announced to date. By its refusal to ask for permission to release the information, the department has avoided answering my quite reasonable questions about what are the consequences of this turn of events; what are the different characteristics of the disease in someone with this different genetic make up; and what else will doctors be instructed to look for in terms of the symptoms of this disease.
It seemed to me a reasonable question to ask and a reasonable question to answer. The Department of Health is hiding behind a refusal to ask the person who has the information whether they are prepared to release it. I am sure that the Department of Health has the information, too, but it is pretending that it does not have it or that it cannot release it.
This is a highly undesirable state of affairs. I do not at all approve of the idea that in every case the public authority should have to ask the possessor of the personal information for the right to release it—in most cases it will be quite clearly private and the person should not be troubled—but there are times when a public authority should not be able to hide behind this. Where the personal information is crucial to public affairs, the public authority should have a duty to ask. That is the purpose of the amendment.

§ 8.30 p.m.

§ Lord Falconer of Thoroton
Dealing first with Amendment No. 206, as the noble Earl, Lord Northesk, acknowledges, the United Kingdom has to implement the European Community directive in relation to personal information. Equally, that 411 directive is of itself required to be consistent with Article 8 of the European Convention on Human Rights which the noble Earl's amendment refers to. A simple requirement such as Amendment No. 206 proposes is unlikely to achieve exactly the same results; namely, compliance with the EU directive. In any event, public authorities have been required to comply with Article 8 by virtue of the Human Rights Act 1998 from 2nd October 2000.
As a result I can see no benefit to the citizen resulting from the amendment proposed by the noble Earl, Lord Northesk. Conversely, it would call into question the UK's implementation of the directive and may lead to claims that we are in breach of our EU obligations. I am sure that is not a result that the noble Earl intended. Therefore, I see no benefit from the amendment and I see, to some extent, harm. I urge the noble Lord to withdraw the amendment.
Amendment No. 208, moved by the noble Lord, Lord Lucas, is drafted to apply to information which is exempt by virtue of either subsections (1) or (2) of Clause 38. I am not clear that the amendment would have any effect in respect of information exempt under subsection (1), and I believe that it could have only limited application in respect of information exempt by virtue of subsection (2).
Where a data subject makes a request for information which is personal to him, that request falls within the limits of subsection (1). The information is exempted from the application of freedom of information, and the applicant effectively pursues his claim to the information under the provisions of the Data Protection Act. In the case of such an application, the question of asking the applicant's permission to release information about himself is clearly a nonsense. So the question does not arise in relation to the Clause 38(1) exemption.
Clause 38(2) deals with personal information relating to someone other than the applicant. So it would cover the example given by the noble Lord. Exemption from the duty to disclose information follows from certain conditions being met. Those conditions are set out in subsections (3) or (4). Although the amendment purports to bite on an exemption under Clause 38(2) regardless of the grounds of that exemption, in practice this would not be the case.
The amendment is only likely to have any relevance to information where a Clause 38(2) exemption falls to be considered by virtue of the conditions set out in subsections (3)(a)(i) or (3)(b). This condition relates to a request for disclosure of personal information by a third party where such disclosure would contravene the data protection principles in the Data Protection Act 1998.
What would such a duty actually amount to? The amendment proposes that there should be a duty to consider asking permission of the data subject to disclose relevant information, but not a duty to consult. Such a duty is so vague as to be effectively unenforceable. The Government believe that it is right 412 that public authorities should, in appropriate circumstances, be encouraged to consider consulting a third party where to do so might result in the disclosure of information which would otherwise be exempt. But we do not believe that it is appropriate to place on authorities a statutory duty to do so. Instead, we have set out the requirement as a provision within the Secretary of State's code of practice, to be made under Clause 44. The code of practice is currently in draft form.
I should also like to add that as a result of the Government's amendments a public authority is required to disclose the information, notwithstanding a Section 10 Notice, if the public interest requires that. I suggest that this is a more appropriate way to deal with this issue than the broad and, I think, undeliverable duty which the noble Lord's amendment proposes.
In the light of that explanation, I hope the noble Earl feels able to withdraw his amendment.

§ The Earl of Northesk
I am grateful for the explanation of the noble and learned Lord. I hear what he says. With the customary reservations, I am content to beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ [Amendments Nos. 207 and 208 not moved.]

§ Clause 38 agreed to.

§ Clause 39 [Information provided in confidence]:

§ Lord Goodhart moved Amendment No. 209: Page 22, line 41, after ("authority),") insert— ("(aa) before obtaining it the authority, in accordance with subsection (1A), gave notice in writing to the person from which it was obtained, that it was willing to receive it in confidence,").

§ The noble Lord said: In speaking to the amendment, I shall speak also to Amendment No. 211, standing in my name and in the name of my noble friend Lord Lester of Herne Hill. These amendments are amendments of some importance. What we are concerned with here, and what we wish by our amendments to try to rule out, is in the first place, and perhaps most importantly, what I might call collusive confidentiality; namely, where information is provided from a public authority in confidence, not because there is a genuine need for confidentiality but because it suits both the supplier of the information and the public authority to treat that information as confidential and therefore prevent it from getting into the public domain.

§ We are also concerned about what I might call unnecessary confidentiality. That is confidentiality which is not collusive, but which is allowed by the public authority simply on the grounds that, for example, that is the way things always have been done. That information has in the past been accepted on a confidential basis and the public authority has not considered, in the light of the Bill when it becomes an Act, whether that confidentiality is really necessary.

413

§ One of the problems is that Clause 39 is one of those absolute exemptions. It is therefore not possible to rely on any balancing exercise under Clause 2 in order to extract that information from the public authority that holds it and puts it into the public domain. Therefore, confidentiality has to be looked at with particular care.

§ The draft code under Clause 44 gives some fairly useful guidance about contractual terms requiring confidentiality. Paragraph 24 states: When entering into contracts public authorities should refuse to include contractual terms which purport to restrict the disclosure of information held by the authority and relating to the contract beyond the restrictions permitted by the Act. In particular, when entering into contracts, as when receiving information from third parties more generally, public authorities should not agree to hold information 'in confidence' which is not in fact confidential in nature".

§ That is expanded on in paragraphs 25 and 26. Paragraph 26 states: Any acceptance of such confidentiality provisions must be for good reasons and capable of being justified to the Commissioner". So far as it goes, that is fairly good. But the code says very little about information which is supplied on a non-contractual basis. There is the one sentence I have already read in paragraph 24 which states: In particular, when entering into contracts, as when receiving information from third parties more generally, public authorities should not agree to hold information 'in confidence'. But that is in a paragraph which deals substantially with contractual terms. It is under a cross-heading, "Freedom of Information and Public Sector Contracts". That is not in any way marked up and brought to the attention of a public authority. Certainly, the code needs to be strengthened considerably so that there is a separate paragraph under a separate or changed cross-heading which draws the attention of a public authority to the importance of excluding unnecessary confidentiality, not only in cases of contracts but outside contracts altogether. That is where the possibility of abuse exists in a non-contractual situation. Therefore, the situation could be improved by enlarging the guidance on non-contractual confidentiality—making it much plainer, stronger and clearer. However, the code is not itself law. In a case that is taken to judicial review, it may have some relevance in deciding whether a public authority has acted properly, but it is not directly enforceable. The exclusion of unnecessary confidentiality should be dealt with on the face of the Bill. Our amendments would require a public authority to give notice in writing to a potential supplier of information that it was willing to receive it in confidence. The supplier of the information would have to say, "We want you to take this information in confidence". The public authority would then have to consider whether it was willing to receive it in confidence; and it could not do so, under our Amendment No. 211, unless it either required that information in order to discharge its functions properly or it believed on reasonable grounds that the information would not be supplied to it unless it gave that notice.

414

§ We believe that our amendments would cover what we see as a serious gap in the Bill which, as it now stands, is not nearly strong enough in preventing collusive or unnecessary confidentiality blocking access to information that ought properly to be made public. I beg to move.

§ Lord Lucas
I have a number of amendments in this group. I shall leave it to the Minister to reply to them. Their meaning is fairly straightforward. If he is able to satisfy me that they are not required, the Committee will be spared my explanation of why I think they are required, which will then have been rendered unnecessary.

§ Lord Archer of Sandwell
I am grateful to the noble Lord for giving way. I appreciate that my noble and learned friend cannot win. I lectured him in a previous debate for replying to arguments before he had heard them.

§ Lord Lucas
Unbeknown to the noble and learned Lord, Lord Archer, the noble and learned Lord, Lord Falconer, has already heard my arguments on these matters.
Perhaps I may raise one other subject in passing. At an earlier stage we discussed the way in which Clause 39 is an absolute exemption. It was then apparent that the Government wished not to have the public interest test that we have in the Bill but to have the rather weaker one of the law of confidence applying in this matter. That would not allow an applicant access to the information commissioner in relation to that determination of public interest. He would have to go expensively to the courts. I do not find that particularly comforting.
I should be grateful if the noble and learned Lord could at least enlighten me on the meaning of the word "actionable" in Clause 39(1)(b). I am not clear at what point a breach of confidence is "actionable". Does it mean that I have the ability to go to a lawyer and have a writ taken out, or does it mean that I have to have good grounds for taking out that writ that would succeed in court? I should be grateful for advice on that point so that I know exactly what scope we are looking at for this exemption.

§ Lord Williamson of Horton
Throughout this and earlier discussions I have been trying not to be too legalistic but to think a little about the actual operation of the Bill when it becomes an Act. I want to make one comment relating to the amendment tabled by the noble Lord, Lord Lucas. He came back again with the point that in relation to Clause 39 the public authority should consider whether the originator of the information should be asked for permission to release that information. We are talking here about information which passes from one public authority to another. Under the Bill, "public authority" is extremely widely defined. Schedule 1 is a list of public authorities. It includes the Wine Standards Board of the Vintners' Company and other authorities which pass information.
415 The practical position is that many documents are classified "In Confidence" at some stage. It is extremely common in the public service to classify documents as "In Confidence". Shortly afterwards, that classification becomes rather ridiculous. Many senior managers in public service spend a good deal of time telling people to go through the documents and strike off "In Confidence" or "Confidential" because it becomes totally irrelevant with the passage of time. I have done it many times in my own life. If the public authority leaves documents as they are and does not consider whether the "In Confidence" is still relevant, we shall have the unnecessary exclusion of information from the public domain.
By one means or another we should ensure that there is proper consideration of whether a classification of "In Confidence" or "Confidential" is relevant at the time a document is requested. In very many cases it will not be relevant. We need to ensure that the classification is properly reviewed.

§ 8.45 p.m.

§ Lord Norton of Louth
Perhaps I may add a few words in support of Amendment No. 211. It is an important amendment. The clause as drafted works against the intent of the Bill, as argued by the noble and learned Lord the Minister. The Minister has stressed on a number of occasions that he wants the Bill to achieve a culture shift—to move the emphasis from secrecy to openness. The clause militates against that. It constitutes a gift to those who want to circumvent the purpose of the Bill. I shall explain what I mean.
As the noble Lord, Lord Goodhart, said, third parties may not want the material they supply to be made public. Officials in the authority who believe that information is power may not want to reveal that information. The authority thus agrees to receive the information in confidence. It is therefore a closed relationship. Nothing in the Bill permits that closed relationship to be prised open. It may be prised open under common law in exceptional circumstances, but they are exceptional. That is the present position. Nothing in the Bill takes us beyond that. For those officials who want to resist the culture shift favoured by the Minister—the very people the Minister wants to get at when he talks about the culture shift—the clause is something of a godsend. If the Minister wants to achieve a culture change, I urge him to give serious consideration to the amendment moved by the noble Lord, Lord Goodhart.

§ Lord Falconer of Thoroton
Public authorities should not be placed in the position of having to choose between failure in relation to the statutory duties under the Bill and giving rise to an action in common law breach of confidence. The speeches of the noble Lords, Lord Norton and Lord Williamson, revealed to some extent something of an over-suspicious misunderstanding of what the effect of the clause means. Simply to put at the top of a document "Confidential" does not make the disclosure of that 416 document by anyone actionable in breach of confidence. "Actionable" means that one can go to court and vindicate a right in confidence in relation to that document or information. It means being able to go to court and win.
On the question of confidence, one could be given a document or information in confidence. As time went by, it could cease to be confidential; for example, because the information was published elsewhere. The issue has to be tested at the point the application is made under the Freedom of Information Act. There is a two-pronged test in Clause 39; first, the information has to be obtained in confidence by the public authority; and, secondly, its disclosure would give rise to an actionable breach of confidence by the public authority. So the information must be confidential from the start and it must still be an actionable breach of confidence to disclose it at the time the application is made under the terms of the Bill.
The scope of the exemption is necessary because the Bill covers a wide range of public sector bodies, from primary schools to government departments. There are many reasons why information may be passed in confidence from one authority to another. It may even be that the duty of confidence arose when information was passed from a private sector body to an authority covered by the Bill. Any subsequent communication of the information between public authorities should maintain this duty of confidence.
The application of the exemption is restricted. Clause 79 prevents a government department from claiming for the purposes of Clause 39(1)(b) that disclosure of any information by it would constitute a breach of confidence actionable by any other government department. This means that information passed between government departments does not fall within the exemption unless the duty of confidence is owed to another person or body.
Clause 39 applies only to information the disclosure of which would give rise to an action for a breach of the common law of confidence. Amending subsection (1)(b), as the noble Lord proposes in Amendment No. 210 would effectively give greater protection to information passed from, say, a commercial firm to a public authority than would be accorded to information passed from one public authority to another. This seems to be an unjust differentiation which we could not support. Private persons, commercial firms and indeed public authorities are entitled to expect that information that they pass to a public authority in confidence will be treated as such.
Amendments Nos. 209 and 211 impose various limitations on the duty of confidence on the recipient public authority. I assume that the noble Lord's intention is to prevent public authorities from using the term "confidential" as a blanket to prevent the release of information. I believe these amendments to be unworkable, but also unnecessary. While this exemption does not come within the public interest test, it is subject to other legal safeguards. As I have mentioned, information would come within the remit of this exemption only if its disclosure would mean a breach of the common law.
417 Third parties can and do freely and proactively pass to public authorities information the disclosure of which would constitute a breach of confidence. Where such information is passed to the public authority without the authority's prior knowledge, the authority could not give such notice as would be required under the noble Lord's amendment. This would leave the authority in the untenable position that, if it received a request for this information, it would have to choose between failing in its statutory duties and being held liable at common law for a breach of confidence.
Amendment No. 230 is inappropriate. In those exemptions which contain elements of confidentiality—that is, Clauses 25(2) and (3), Clause 39 and Clause 40—the amendment sets out an unnecessarily bureaucratic procedure for determining whether or not confidentiality applies. In many cases the circumstances surrounding the communication of information will already make it perfectly plain that it is to be held in confidence, without the need for further instruction in writing.
The noble Lord's amendment also misunderstands Clause 40, which covers communications to a public authority by its lawyers and by other persons for the purposes of litigation. In such an instance, the public authority will often not be the originator of the information. However, the legal professional privilege in question is that belonging to the public authority. To limit the authority's ability to rely on its privilege to circumstances where a third party beyond its control has marked information as "confidential", misses the point of legal professional privilege; it would in effect undermine the rights which the doctrine accords to public authorities, while leaving intact those rights for all other legal persons.
This amendment inappropriately applies to Clause 41. This exemption is intended to exempt information which has not been passed in confidence but whose disclosure would be prejudicial to the commercial interests of any person, including those of the public authority itself. The amendment would exclude this sort of information from the scope of Clause 41—and thus force public authorities to disclose trade secrets, unless the provisions of the proposed new clause had been complied with.
Amendment No. 232 is not needed. Nothing in the Bill disturbs the obligations of public authorities under the common law duty of confidentiality and it is this which authorities will have to consider, rather than the Secretary of State's code of practice, in determining whether or not the authority is under an obligation of confidentiality.
The noble Lord, Lord Lucas, says that the effect of Clause 39 is that the applicant must go to court in order to establish his reliance on the clause. That is not right. The commissioner can assess whether Clause 39 applies. She can assess whether the information is in fact held in confidence.
The noble Lord referred en passant to the fact that this is a weaker public interest test under the law of confidence than the Clause 2 test. I do not know what he meant by that. He will need to explain his argument before l can deal with it.
418 The noble Lord, Lord Goodhart, referred to the code of practice. The code is a draft document. It is work in progress. I very much welcome comments from the noble Lord and others on how it could be strengthened or changed. It will be discussed with the commissioner in due course. However, we remain of the opinion that the question of confidence is best dealt with in a code where flexibility of approach can be maintained, rather than on the face of the Bill. I invite the noble Lord to withdraw his amendment.

§ Lord Goodhart
I draw a little comfort, but not very much, from the Minister's remarks about the code. I was hoping for something stronger. I hoped he would say at least that the Government would look favourably on extending the guidance given in relation to confidentiality. However, I shall have to make do as best I can with what he said.
I found some difficulty in following the noble and learned Lord's argument on the effect of Clause 39. It seems to me that if a third party supplies information to a public authority and stamps it "confidential", that cannot in itself impose a duty of confidentiality on the public authority. Confidentiality involves a certain degree of consensus between the two parties. We are concerned with the case where a public authority indicates its willingness to accept information that is treated as confidential where the circumstances do not justify that. Nothing in the Minister's response dealt with that problem. Therefore, we may want to re-examine the matter.

§ Lord Lucas
Before the noble Lord ends this discussion, perhaps I may take the chance to come back to the noble and learned Lord, Lord Falconer, on the point about relative levels of confidentiality. I am relying, as so often, on a briefing from the Campaign for Freedom of Information. It states that the test under Clause 39, is likely to be more restrictive than the bill's public interest test. The courts have held that an obligation of confidentiality may be set aside (or in some cases may not have arisen at all) where the information reveals the existence of crime, fraud, serious misconduct, danger to the public or other matters of such importance that 'it may fairly be regarded as vital in the public interest that a person possessing such information should be free to disclose it to an appropriate third party'". This is a narrower public interest test than that contained in the Bill, which seems likely to give more weight to including information to which the public's right of access would apply. I am always willing to accept the noble and learned Lord's view on the law. However, it seems to me that, on that interpretation, we are looking at a rather narrower right of public interest under this clause.
I should also be grateful if the noble and learned Lord would translate from the wording of Clause 39(1)(b) to the question that the official who will decide this question will actually have to ask himself. Will he have to ask himself: "Looking at all the circumstances, do I believe we should lose a case if one were brought?"; or will he have to ask: "If I disclose this information, is there a likelihood that I shall he sued, or a possibility that I shall lose?". How will he 419 phrase the test? How will the information commissioner judge whether he has taken the right decision? Presumably, the information commissioner cannot put herself in the place of the court and decide the question. The question must be phrased from the point of view of the public authority. Am I likely to lose? Am I certain to lose? What will the question be?

§ 9 p.m.

§ Lord Falconer of Thoroton
First, the question will be: do we hold this information in confidence? It will not be, "Is this marked in confidence?", because that is not the test. The test is: "Would I genuinely be breaking someone's confidence by disclosing this information not at the time that the information was received but now?" If it is something which is held in confidence from someone else, is there nevertheless a public interest in disclosing it because the public interest requires that the public know it? That is the question that the official or the public authority asks.
If under the Freedom of Information Act the applicant complains that there has been no disclosure under Clause 39, that is the question which the information commissioner asks. We should not be distracted by the fact that the test being applied is a common law test. That does not mean that the information commissioner is not capable of balancing those two interests.

§ Lord Goodhart
I am a little puzzled by that reply because, as the noble Lord, Lord Lucas, said, the test for removing confidentiality in court is one of serious misbehaviour; that is, there is a vital public interest. It usually states that there is no confidentiality to protect iniquity. I believe that "iniquity" is the word that is used in most cases. That, of course, is fairly narrow. I hope that there are not too many cases where the behaviour is iniquitous.
Here, we are considering the withholding of information which it would be tiresome or inconvenient for the public authority to disclose. Given that, where information is accepted on the footing that the receiver of the information will treat it as confidential or that the disclosure of information will give rise to an action for breach of confidence, we feel that the test imposed by Clause 39 is too narrow. It may be correct in itself but it comes too late in the whole game. One wants to ensure that the public authority does not accept information on a confidential basis where it is not properly justified in doing so.
Perhaps I may continue from the point that I was about to reach when the noble Lord, Lord Lucas, intervened. On this occasion, I beg leave to withdraw my amendment.

§ Amendment, by leave, withdrawn.

§ [Amendments Nos. 210 to 212 not moved.]

§ Clause 39 agreed to.

§ Clause 40 [Legal professional privilege]:

§ [Amendment No. 213 not moved.]

420

§ Clause 40 agreed to.

§ Clause 41 [Commercial interests]:

§ Lord Cope of Berkeley moved Amendment No. 214: Page 23, line 8, at end insert ("and there is no overriding public interest in complying with the request for information").

§ The noble Lord said: In moving Amendment No. 214, I wish to speak also to Amendments Nos. 215, 217 to 222 and 325. We have now moved on to Clause 41, which is concerned specifically with commercial interests. We brushed against that subject a few moments ago, but this is the substantive clause and these are the substantive amendments which deal with it.

§ The first oddity about Clause 41 is that there are two separate tests in subsections (1) and (2). Subsection (1) states that: Information is exempt … if it constitutes a trade secret", but it does not define "trade secret". Subsection (2) separately exempts information, if its disclosure … would be likely to, prejudice the commercial interests of any person (including the public authority holding it)". I am not quite sure how the definition of "trade secret" differs from the definition given in subsection (2). However, particularly in Amendment No. 215, we have attempted to define a trade secret so as to narrow that down. I believe that that is desirable.

§ There is also the question of whether a trade secret, simply because it is a trade secret or one defined as such in subsection (2), should automatically be exempt in all circumstances. Amendment No. 219 and, for that matter, Amendment No. 214—and other amendments have been suggested by other people—attempt to insert that where the public interest in complying with the request for the information exceeds the harm that would result from releasing it, the information is not exempt. In different ways, we are attempting to provide that the public interest may still permit the release of what would otherwise be a trade secret or a matter that was commercially confidential.

§ Amendment No. 222 looks at the question of retrospection by saying that information is exempt if it was supplied to the public authority by a company or a commercial organisation before the coming into force of this Act. I believe that retrospection is always difficult. Business requires stability and it is important that business should be able to rely on the laws as they stand—in this case, at the time when the information is given to the public authority—and should not find retrospectively that something they were told falls under this legislation.

§ Amendment No. 325 concerns information which might last for ever. Some trade secrets remain valuable for a very long time, particularly when they concern matters such as patents or items which cannot be patented but on which businesses rely for making sales. This amendment attempts to ensure that such information is not automatically released after 30 years under Part VI of the Bill as otherwise it would be. The City of London in particular is often criticised for short-termism. However, sometimes there is long-term commercial interest in information. We are attempting 421 to allow that protection to continue for longer and for it not to be subject automatically to the override of the later clauses in the Bill. Therefore, I beg to move Amendment No. 214.

§ Lord Archer of Sandwell
I congratulate the noble Lord, Lord Cope, or perhaps it should be his noble friend Lord Mackay, on his skill in drafting this amendment. It says broadly the same thing as mine but he drafted it so that it came first in the text and therefore opens the bowling. I should like to speak to my Amendment No. 218 and, since the noble Lord deployed the case, it will not benefit from repetition.
However, I invite my noble and learned friend to consider a hypothetical situation. Suppose a public authority is told that a specific retailer is selling foodstuffs which are toxic, and it ascertains that that is true. Clearly to reveal that would prejudice the commercial interests of the retailer. The Bill would not preclude the authority from making it known if it chose, but if someone were to ask the authority whether or not the retailer was selling toxic goods, we might have hoped that it would be under an obligation to disclose the answer.
It is not unknown in the experience of most of us for an authority or a government which is aware of a danger to decide that it would be better to keep the public in ignorance, so as not to create alarm, for example, or not to damage our export trade. Members of the public will not know about the information until they complain about the epidemic. I assume the philosophy of the Bill is that information of that kind ought to be made known to the public. Would it not be wise to ensure, therefore, that danger to a commercial interest is not the only consideration to be taken into account?

§ Lord Goodhart
We tabled Amendment No. 221, which comes within this group. It is fair to say that we are not particularly concerned about Clause 41(1)—the definition of "trade secret" is fairly widely recognised in existing law. But we are concerned about the width of Clause 41(2). While we accept that this is not an absolute exemption and therefore the balancing test under subsection (2) has to be applied to it, the present width of Clause 41(2) is a serious problem.
Our solution—it is certainly not the only possible solution—is that there should be in the clause something equivalent to what was Clause 13(5) and which we have been assured will be brought back; that is, that the authorities must have particular regard to the public interest in the effective oversight of public funds; in making sure that the public are adequately informed about risks to health and safety or risks to the environment; and that regulators are discharging their responsibilities effectively. We believe that the public interest element in Clause 41 needs strengthening considerably and that our amendment is the appropriate, if not the only appropriate, way of doing it.

§ Lord Young of Dartington
I wish to speak to Amendment No. 220, tabled in my name. I say 422 immediately that I am very much in favour of the proposals made by those noble Lords who spoke before me on other amendments in this group.
After saying that, I join with my noble and learned friend Lord Archer of Sandwell in paying tribute to the Freedom of Information Campaign, Maurice Frankel and the two co-chairmen in particular for their great persistence over many years and their willingness to come back after the series of disappointments which they endured.
Looking back over the period at which the campaign has been at work, two things seem to be at odds. One is that the public realm is becoming more accessible to those members of the public who are interested. That is because of the growing reach of the media; because of often invasive journalism: because of the—almost— respectability which whistleblowers are receiving and the leaks that are becoming endemic on almost every subject that the Government touch—at least when there is any suggestion of any scandal or misdoing.
The public may get a strange, misinformed and biased view of what is going on in various parts of the government but they get a view. The kind of view they get does little to favour the esteem in which governments are held. The Consumers' Association recently conducted a survey into the public's confidence in Ministers. It showed that the majority of people did not have great confidence in them and that that lack of confidence is probably growing.
On the other side of the coin has been the Government's long-term resistance to letting the public know what is going on behind closed doors. That may have excited the media to try to discover many things, some of which are inaccurate, in order to satisfy an appetite. It seems to me that if only there were more openness—more than is shown in the Bill—the Government would not be so greatly affected by the media slights which are such a pain to Ministers and others in many ways.
The provision is crucial from the point of view of consumer interests. As I said at an earlier stage of the Bill, I was founder and I am now president of the Consumers' Association. It has been a major funder of the freedom of information campaign and is proud to be. If that means that I should declare an interest, I certainly do. The association has been foiled on so many issues in its attempt to provide information which would be of interest to consumers in trying to make a balanced decision about a particular issue. When the association first began, we were afraid that our chief enemies would be large companies and others which would get on our back because we were trying to give—and were generally succeeding—information about goods and services on the market.
We thought that in some way the confidentiality, secrecy and so forth would be difficult to overcome. To some extent, that has been overcome. Now our chief difficulty is trying to discover official information. Consumer confidence has been shaken by a series of scandals about BSE, GM food scares, major transport disasters, pensions mis-selling, mortgage endowments 423 and large-scale price fixing in the car industry. The root cause of all those scandals may be different but they had one thing in common. By the time consumers discovered what had gone wrong, or the full extent of the damage had become clear, it was too late. Citizens in the UK have paid twice, both as taxpayers and consumers, for many decisions on the part of public authorities in refusing to disclose information and decisions which are therefore made behind closed doors. In our view, that has become the single most important consumer issue before Parliament.
As there is no adequate freedom of information, we have had to consider what we can do within the existing law. I should like to give as an example the so-called "orphan assets". Earlier this week, the Consumers' Association filed a pre-emptive cost order to try to give it the right to tackle a leading French insurer, AXA. It is one of the many insurance companies which has orphan assets which, in the view of the Consumers' Association, should belong mainly to policyholders and where the decision rests partly with the Government.
There have been long-drawn-out negotiations between AXA, the Financial Services Authority and the Treasury about what to do with those orphan assets, which are very large overall when one considers all the life insurance companies; indeed, they are estimated to amount to between £20 billion and £30 billion. This is certainly a very important consumer issue. All that we could find out—we managed to get 500 AXA policyholders organised on this issue—is that the FSA said that the offer made to policyholders fell within a "reasonable range".
We have asked many times what is that "reasonable range", because it is a matter that concerns every policyholder who may be called on to vote on AXA's proposed scheme. They will want to know whether the actual figures are at the high level or the low level of the range. But, as I said, we have not been able to get anywhere. That is why we are trying to get the courts interested. However, in our view, it should not be necessary to do so: the FSA should have given this information, with the backing of the Treasury, without question.
Clause 41 would continue to make life very difficult for consumers and all those who support their interests. It is a sweeping clause that will make any disclosure exempt if it would prejudice "commercial interests". As I say, that is a very wide sweep. Commercial interests have always been cited as the main reason for non-disclosure where it affects consumers. The purpose of my amendment would be to ensure that the requirement to disclose information that helps consumers to make informed choices or serves to improve the quality of markets for the general good would override the protection given to narrow commercial interests.
We recognise, of course, that commercial interests do need protection; indeed, no one can dispute that fact. However, there is a strong case for disclosing information that allows consumers to obtain redress. It would be a great improvement if there were a 424 reference to a public interest. I am not suggesting for a moment that the particular words in this amendment are necessarily the right ones, but they express a resolve on our part. It is possible that the Minister will not be able to accept all of my amendment. However, if he is able to say that he will consider the points that I have raised and perhaps return at a later stage with a form of words that would make the clause less sweeping and more favourable to consumer interests, that would alleviate a little of the misery that has been discussed in the debates on the Bill.

§ Lord Falconer of Thoroton
Perhaps I may deal, first, with Amendments Nos. 214, 218 and 219, which suggest that some public interest test of one sort or another should be included in Clause 41. By virtue of the new Clause 2, which was added by earlier government amendments, there is already a public interest test that applies to information exempt under Clause 41. Therefore, authorities must release such information, where the public interest in disclosing the information outweighs the public interest in maintaining the exemption". The amendments are, therefore, unnecessary because the Bill already achieves their purpose, and I ask noble Lords not to move them.
Amendment No. 221 was one of the amendments proposed by the noble Lord, Lord Goodhart. He identified certain specific issues that should be addressed and weighed in the balance under Clause 13, now Clause 2. It is not clear why a framework such as that contained in his amendment is considered necessary in respect of this type of exemption but in no other. In seeking to identify interests to which the authority should have particular regard in this way, the effect would be to weight the balance of the test in a particular direction. The Government do not consider that that is appropriate. Authorities need to take account of all the circumstances of a particular case when reaching such decisions. No single interest or group of interests should be seen to predominate. I invite the noble Lord, Lord Goodhart, not to move that amendment.
I am delighted that the noble Lord, Lord Young of Dartington, has taken part in this debate. He has obviously had a much longer role than any of us on issues concerning freedom of information and consumer choice. I am delighted that he delivered such a speech and played a part in this Committee stage. Having said that, I shall begin to disappoint him with my response to his amendment.
I wholly support the intention to protect consumer choice, but the amendment is too widely drawn. Information that relates to the quality or safety of the goods or services or conditions of production or supply may include, for example, manufacturing processes by which the quality or safety of a particular product is ensured or a firm's plans for promoting a particular product where quality or safety are to figure in the promotion. The amendment states: conditions under which those goods or services are produced or supplied". 425 That could range from manufacturing processes through to conditions in supply contracts and marketing plans. The harm test is also too wide. Factors affecting consumer choice include price, quality, the environmental impact of the product, the origin of the product, location of its point of sale, how it is marketed and a range of other criteria. The effect of this test would be to remove the protection of the exemption from any commercially sensitive information which touched on these or other factors. There is already provision in the Bill for those matters to be properly taken into account under the public interest test. In the light of the arguments, I hope that the noble Lord, Lord Young of Dartington, can be persuaded not to pursue his amendment.
I turn to Amendment No. 215, which seeks to define "trade secret". The noble Lord, Lord Goodhart has said, and he is right, that trade secret is a phrase well known to the law. It is used in a large number of statutes and cases. I do not believe that there will be any difficulty in identifying a corpus of law which would define it. "Trade secret" would not go as far as to cover everything in Clause 41(2) because "trade secret" would primarily focus on processes within a commercial organisation, whereas Clause 41(2) is wide enough to cover, for example, competitors of an organisation giving information to the Government that was critical of its processes. That would not be a trade secret, but something that could damage the body about which they were talking.
I was asked about the situation where information is given about a particular product which showed that the product was toxic in some respect, and whether that would be disclosable under the Bill. We always come back to while it might be damaging, the public interest has to be weighed in Clause 2. So I do not think that a definition of "trade secret" is appropriate.
I turn finally to Amendments Nos. 222 and 325. Amendment No. 222 would effectively introduce a new exemption into the Bill for all information that was supplied to a public authority by a company or other commercial organisation before the Bill, once enacted, came into force. This would apply to a large amount of information and would drive a coach and horses through the policy of retrospection, at least in relation to commercial information. I grant that the public interest test provisions would at least still apply to information of that sort.
However, this general approach is nonsensical because such information should already be available under the code of practice introduced by the previous government. I would therefore ask noble Lords not to press that amendment.
I do not believe that Amendment No. 325 is necessary. There are good reasons for continuing certain exemptions relating to highly sensitive information beyond the 30-year point. However, that can only be justified where there is some likelihood that the disclosure of such information could cause real harm years after it was created. The circumstances of commercial life change so rapidly that I cannot foresee any information which would have a 426 prejudicial effect on a party's commercial interests after 30 years. For those reasons I invite the noble Lord not to pursue his amendment.
Amendment No. 217 has not been proposed by the noble Lord, Lord Lucas. It refers "to an unreasonable degree". I am not confident that that term would assist us. There will continue to be different interpretations of what constituted "unreasonable" and in consequence no clarity about the way in which the provision would work in practice.

§ 9.30 p.m.

§ Lord Archer of Sandwell
Perhaps I may echo the tribute which my noble and learned friend paid to my noble friend Lord Young. I still have some of the books and pamphlets which he wrote when I was a student, which is a very long time ago. They are still on my shelves, occupying a place of honour.
I apologise to my noble and learned friend. I overlooked the fact that there was a public interest test in the new clause. I thought that I had checked it. Admittedly, I did so after a late night and an early morning, but I did not see it. I take on board what he says, subject to the point made yesterday by my noble friend Lady Whitaker that the test in its present form does not deal with the tie-breaker situation.
I believe that I have fathomed the secret of my noble and learned friend's success as an advocate. One has two arguments and preferably they are inconsistent and mutually exclusive. One does not use both of them on the same occasion. If the complaint is that the category is too wide, one says, "Don't bother about how you define the category, let's keep it simple. Let's subject everything to a prejudice test and do not worry about what the category says." If the complaint is that there is no prejudice test one says, "Of course, some things are so likely to cause harm that one will need categories so one has to be very careful what they are." He uses both arguments to extend the scope of information which is exempt from the Bill. However, I promise to look very carefully at the new Clause 2. It may very well be that I shall not need to trouble the noble and learned Lord further.

§ Lord Cope of Berkeley
I was also delighted that the noble Lord, Lord Young of Dartington, contributed to this short debate. Like the noble and learned Lord, Lord Archer, I believe that the noble Lord has given us something to think about on the points raised by these amendments. I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ [Amendments Nos. 215 to 219 not moved.]

§ Lord Young of Dartington had given notice of his intention to move Amendment No. 220: Page 23, line 11, at end insert— ("( ) Information is not exempt by virtue of subsection (2) if or to the extent that—

(a) it relates to the quality or safety of the goods or services produced or supplied by the person referred to in that subsection or the conditions under which those goods or services are produced or supplied; and
(b) the prejudice to that person's commercial interests would result from the exercise of more informed choice by persons seeking to acquire those goods or services.").

§ The noble Lord said: I am most grateful to the noble and learned Lord and other noble Lords for what they said. I could not help thinking once again of the old saying that fine words butter no parsnips. If the noble and learned Lord has second thoughts about the matter, it would be sensible and greatly appreciated in wide circles if there was a re-wording of the clause. Despite the arguments that he advanced, I believe that he can see that it will not be apparent to ordinary consumers in Widnes, or wherever it may be, that there is some small protection here. There is a chance that the noble and learned Lord will be prepared to back his kind words tonight with some kind of action and that he will show some concern for the consumer interest. There is no better place in the Bill than in Clause 41. I know that the noble and learned Lord has many things on which to reflect, but I hope that he will feel able to make more than a gesture to an important interest in our society. I shall not move the amendment.

§ [Amendment No. 220 not moved.]

§ [Amendment No. 221 not moved.]

§ Clause 41 agreed to.

§ [Amendment No. 222 not moved.]

§ Clause 42 [Prohibitions on disclosure]:

§ [Amendments Nos. 223 to 225 not moved.]

§ Clause 42 agreed to.

§ Clause 43 [Power to confer additional exemptions by order]:

§ Lord Cope of Berkeley had given notice of his intention to move Amendment No. 226: Page 23, line 28, leave out ("effects adverse") and insert ("substantial prejudice").

§ The noble Lord said: In moving Amendment No. 226, I wish to speak also to the amendments with which it is grouped.

§ Lord Falconer of Thoroton
This is an amendment to Clause 43, which we oppose standing part. Therefore I do not think that there is much point in moving amendments to it.