§ (" . Records of ministerial engagements can never be exempt information under sections 19, 20, 26, 27, 33, 34, 38 or 39.").
§ The noble Lord said: I shall adopt my standard technique here. This is merely an opportunity for the noble and learned Lord to show yet again how determined he is that this Bill should not apply to the central activities of government. I beg to move.
§ Lord Bassam of Brighton
I am afraid that the noble Lord, Lord Lucas, will have to put up with the noble and less learned Lord Bassam on this amendment.
We take the view that it would be wrong to treat records of ministerial engagements differently from other types of information held by public authorities. This would be the effect of the blanket disclosure which Amendment No. 231 would introduce. The Bill as drafted ensures that such information will be disclosed, if it is in the public interest to do so. We believe that is the right test. The decision is, of course, reviewable by the information commissioner and she can order disclosure. I am not sure that too much would be gained by knowing how and at what time I arrive at Victoria Station in the mornings. Nevertheless the information commissioner would be obliged to disclose that information if she thought it right to do so. The Bill ensures that such information as ought to be disclosed will be disclosed. We believe that this amendment is not necessary. I therefore invite the noble Lord to withdraw it.
I turn to the proposed new clause in Amendment No. 231A. This would remove from the scope of certain exemptions the name and address of any correspondent with a public authority, the date of the correspondence and response from that authority. Subsection (2) of the proposed new clause defines "name and address" for the purposes of the new clause.
I am not convinced that members of the public corresponding with public authorities would be at all happy at the prospect of their names and addresses being disclosed to third parties simply by virtue of having entered into such correspondence. Nor am I clear what this would achieve; perhaps the noble Lord can enlighten us.
There is also the question of clashing with other legislation, in particular, the Data Protection Act 1998. Under the 1998 Act, "personal data" are data which relate to a living individual who can be identified from that data. It is likely that the names and addresses of persons drawn from correspondence with public authorities will be "personal data" within the meaning of the Data Protection Act 1998. The noble Lord's amendment would almost certainly be incompatible with the directive on which that Act is based. Given that information, I trust that the noble Lord will also withdraw that amendment.
§ Lord Lucas
I shall not, of course, press the amendments, but the noble Lord is saying that the 429 identity of those lobbying Ministers is something which this Government wish to continue to be able to keep secret. I understand that to be the case. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 231A not moved.]
§ Clause 44 [Issue of code of practice by Secretary of State]:
§ [Amendment No. 232 not moved.]
Lord Lucas moved Amendment No. 233:
Page 24, line 38, at end insert—
("( ) The code may include provisions as to how public authorities shall reach decisions under particular sections or subsections of any part of this Act.").
§ The noble Lord said: This amendment would allow the information commissioner to set out rules and to express opinions on how decisions under the Bill shall be reached by public authorities. I think it extremely important that the information commissioner should be able to do so. It should be part of her remit. I beg to move.
§ Lord Norton of Louth
I add a word of support for my noble friend's amendment, and a provision which may be helpful in relation to the code. Having considered the amendment, the draft code and the Bill, I believe that there may be argument for providing guidance relating to the publishing of publication schemes. Under Clause 17 authorities are required to publish publication schemes. However, as I read the clause, I am not sure that publication is covered by the publication scheme. There may be a need for guidance under the code relating to the publishing of the publication scheme. It is referred to in the draft code but there is no guidance on the form of publication other than a requirement that an e-mail address should be included.
I use my noble friend's amendment as a peg on which to hang this point. I did not give the Minister notice that I would raise the matter. I do not expect, therefore, a response today. I put the issue before the noble Lord if he wishes to consider it.
§ Lord Bach
I am grateful to the noble Lord, Lord Norton of Louth, for raising a matter which I should like to consider.
Amendment No. 233 would have the effect of allowing the code of practice to include provisions relating to how public authorities shall reach decisions under the Bill. However, we think that it would be inappropriate to place provisions about reaching decisions under the Bill in a code of practice. It may be that there has been some misunderstanding as to how this amendment would work. Subsection (2) of Clause 44 is an adjunct to subsection (1). It does not provide an exhaustive or definitive list of what is to be contained in the code of practice. We see the codes of practice as there to provide a methodology for public authorities; for example, on how to deal with inquiries or complaints. The noble Lord's amendment would 430 extend that to covering areas such as how to reach a decision concerning exemptions, a matter which we believe is correctly dealt with on the face of the Bill.
The code is a supplement to the provisions of the Bill. It is not a substitute for legislation. The responsibility—I want to emphasise this—for ensuring that authorities apply the provisions of the Bill rests with the information commissioner and the tribunal and not with the Secretary of State. The commissioner can set rules on what she wants, but the amendment relates to what the Secretary of State must include in the code. It is the commissioner who has the power to set the rules on this.
My initial answer to the noble Lord, Lord Norton of Louth, on publication, is that that again is a matter for the commissioner when she determines on the set of rules that she may apply. After this short debate, I hope that the noble Lord will withdraw his amendment.
§ Lord Lucas
I think that the Minister misunderstands where the amendment would come in the clause. It would not be a paragraph under subsection(2) but a new subsection (3). It is a permissive "may" rather than a "must".
The reason for bringing forward the amendment is amply illustrated by the debate I had with the noble and learned Lord, Lord Falconer, about 10 minutes ago on the test which would have to be applied by a public official considering whether information was held in confidence and should be disclosed under that brand of public interest test. The information commissioner will sit in judgment on whether the public official has done right, but will not be allowed to give the public official any guidance as to how to do right. That is an odd state of affairs. Anyone who judges whether the right procedures have been followed in deciding the public interest must set down the procedures that they expect to be followed so that a public official who seeks to take a decision under the relevant clauses can know that they have clone as they are supposed to do and that the information commissioner is likely to be happy.
§ 9.45 p.m.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 234 not moved.]
§ Clause 44 agreed to.
§ Clause 45 [Issue of code of practice by Lord Chancellor]:
Lord Falconer of Thoroton moved Amendment No. 235:
Page 25, leave out lines 25 and 26 and insert—
("(c) in relation to Northern Ireland, the appropriate Northern Ireland Minister.").
§ On Question, amendment agreed to.
§ [Amendment No. 236 not moved.]
§ Clause 45, as amended, agreed to.
§ Clause 46 [General functions of Commissioner]:
The Earl of Northesk moved Amendment No. 237:
Page 25, line 35, at beginning insert—
("(A1) The purpose of the Commissioner is to facilitate public access to the information held by public authorities except where disclosure of specific information is exempt under the Act.").
§ The noble Earl said: Our aim is straightforward: we seek to add what amounts to a purpose clause to the section describing the role of the information commissioner. Unsurprisingly, bearing in mind previous debates, we believe that to be particularly important given the proposals to merge the positions of Data Protection Commissioner and information commissioner.
§ Once the Bill is enacted, the role of the combined data protection and information commissioner will be vital. In principle, the main aim of the former incarnation was to ensure that people had access to personal information held on record. However, in practice the bulk of her work is concerned with ensuring that personal data are not misused by organisations or transferred between organisations unlawfully. In many cases, that involves ensuring that information remains secret rather than promoting openness. That is still a major contradiction at the heart of the Bill.
§ We acknowledge that the amendment will not resolve the contradictions—indeed, the Minister may argue that it could exacerbate them—but we believe that the Bill should stipulate that the purpose of the information commissioner is to facilitate the release of information. After all, this is a Freedom of Information Bill. What more important role can the commissioner have? I beg to move.
§ Lord Lucas
I have three small amendments in the group. Amendment No. 239 would insert the words "and spirit" to promote the observance by public authorities of the requirements and spirit of the Act. I lived for a long time under the aegis of the City code. It was successful because it imposed the spirit as well as the letter of the code on the people who were subject to it. A lot of clever people who were very good at getting round government regulations all the time and made a great deal of money out of doing so were unable to get round the code because they had to obey the spirit as well as the letter. As we are aiming for a culture change and do not want to encourage officials to look for legalistic ways round the provisions of the Act, the words "and spirit" would be thoroughly desirable.
The other two amendments question why, under subsection (3), the commissioner has to have the consent of a public authority to assess whether it is following good practice. The commissioner should be able to do that off her own bat whenever she wants and report on it independently, much as Ofsted reports on how well a local education authority is doing.
432 The purpose of Amendment No. 258 is to question the Government on what restrictions the inclusion of the words "with respect to those functions" places on the commissioner. I should like to be sure that after a couple of years, she is able to say that the legislation is failing because of some provisions in the Act and that there should be extra powers or things should be written differently. She should be able to say that it is time for amendments to be made to the Act. The commissioner, who is in the middle of these things, should be able to express such views. It is not clear to me from the wording of the Bill that she would be able to do so.
§ Lord Falconer of Thoroton
As regards Amendment No. 237, the Bill already enables the commissioner to promote access to information held by public authorities in general. It is envisaged that the commissioner will, for example, as part of that wider role, issue advice on a range of matters to assist both applicants and public authorities and thus facilitate public access to information held by public authorities. Therefore, Amendment No. 237 does not add anything and is unnecessary.
As regards Amendment No. 242, the second of the amendments in the name of the noble Lord, Lord Lucas, the commissioner has extensive powers to investigate a public authority if she believes that it is failing to comply with the provisions of the Act. Those are found at Clauses 49 to 51 and do not require the consent of the public authority. Clause 46(3) gives the commissioner the power, with the consent of the authority, to perform an additional auditing function in circumstances where there is no suggestion that the authority is not complying with the provisions of the legislation but would welcome her advice. It would be odd to give the commissioner the power to audit an authority's compliance with the Act without its consent, if there was no suggestion of non-compliance. If there is a suggestion of non-compliance, as I say, that can be dealt with under Clauses 49 to 51.
Amendment No. 258 is based on a misunderstanding of the breadth of the commissioner's functions. As drafted, the Bill would allow the commissioner to report to Parliament that she believed that the Act should be amended or that certain provisions prevented proper disclosure. That is what the noble Lord was primarily aiming at. But the commissioner cannot properly act outside the scope of her statutory functions and it would therefore be wrong to suggest that she could report to Parliament on her own, acting outside those functions.
Finally, as regards the reference to "spirit", the Bill as drafted places wide duties on the commissioner that include, but are not limited to, the enforcement of the right of access to information held by the public authorities. Amendment No. 239 goes beyond that. In this context, reference to the "spirit" of the Act would be unhelpful. It would simply lead to legal problems; nor is it clear what it is, if not compliance with good 433 practice, which the commissioner must already promote. For those reasons, the amendment is not appropriate.
§ The Earl of Northesk
I am grateful to the noble and learned Lord for his response. I am quite content at this stage and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 238 to 248 not moved.]
§ Clause 46 agreed to.
§ Clause 47 [Recommendations as to good practice]:
§ [Amendments Nos. 249 to 253 not moved.]
Lord Lucas moved Amendment No. 254:
Page 26, line 44, at end insert—
("( ) A practice recommendation shall never be exempt information under Part II of this Act.").
§ The noble Lord said: I shall await the ministerial reply to Amendment No. 254. I do not know whether my noble friend wishes to speak to Amendment No. 255. Again, on Amendment No. 261, it saves a great deal of time first to hear the ministerial reply. I beg to move.
§ Lord Bassam of Brighton
I understand that Amendment No. 255 is not to be moved. I deal with the two amendments in the group to which reference has been made. As to Amendment No. 254, nothing in the Bill as drafted requires that information contained in a practice recommendation is exempt. We believe it is likely that the commissioner will wish to summarise any recommendations she may have made when she makes her annual report to Parliament, as required under Clause 48(1). It would be open to her to refer directly to such a recommendation in that report, or in any other report that she might decide to make under the provisions of Clause 48(2). To that extent, much of the information relating to practice recommendations will be routinely made available to the public.
The information commissioner is herself a public authority for the purposes of freedom of information. A member of the public would, therefore, be entitled to request that the commissioner, or the relevant public authority, should disclose information that she or it held which is contained in a practice recommendation. Amendment No. 254 would result in the disclosure of all the information in that recommendation, including, for example, any confidential or personal information which might have been included to illustrate a particular requirement for change. I do not think that that is sustainable in principle or practice. A fundamental principle of the Freedom of Information Bill is that it requires each application to be judged individually against the careful balance of rights which the Bill recognises. I have good reason to believe that in many cases the requirement of a blanket disclosure would result in considerable unfairness.
I turn next to Amendment No. 261. That amendment would have the effect that an applicant could apply to the commissioner for a decision in respect of failure to comply with the codes of practice 434 made under Clauses 44 and 45, in addition to any failure to comply with the requirements of Part I of the Bill. As currently drafted, compliance with the codes of practice is not statutorily enforceable. The matters to be considered within the codes are ones of good or best administrative practice. We believe that they need to be flexible in order that they can be readily and effectively adapted to meet the wide range of circumstances which will apply across the 50,000 or more public authorities under the Bill. The codes are drafted in termsof desirable action or provision rather than clear and specific duties. In the absence of such specificity, it would be inappropriate to place statutory weight on compliance in such matters. I hope that on that basis the noble Lord is able to withdraw his amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 255 not moved.]
§ Clause 47 agreed to.
§ Clause 48 [Reports to be laid before Parliament]:
§ [Amendments Nos. 256 to 258 not moved.]
§ Clause 48 agreed to.
§ 10 p.m.
Lord Cope of Berkeley moved Amendment No. 259:
Before Clause 49, insert the following new clause—