Sitting of 17 October 2000

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Bristol.

Lord Jordan
William Brian Jordan, Esquire, CBE, having been created Baron Jordan, of Bournville in the County of West Midlands, for life—Was, in his robes, introduced between the Lord Christopher and the Lord Faulkner of Worcester.
Lord Luce
The Right Honourable Sir Richard Napier Luce, Knight, having been created Baron Luce, of Adur in the County of West Sussex, for life—Was, in his robes, introduced between the Lord Weatherill and the Lord Fellowes.

St Helena and Ascension Island
2.48 p.m.
Lord Waddington Lord Waddington asked Her Majesty's Government:
Whether they will commission a study of the impact on the economy of St Helena of changes in the financing of public services on Ascension Island.
Baroness Amos: My Lords, proposals for changes in the financing of public services on Ascension Island have been the subject of a recent study by consultants from the University of Portsmouth. They visited St Helena and held extensive discussions on the economic and financial relationship between the two islands. Financing options are being considered in full consultation with the St Helena Government. This represents the best way forward. Consequently, there are no plans to commission any further studies on this issue.
Lord Waddington: My Lords, I thank the noble Baroness for her reply. Does not she agree that St Helena's frail economy would be bound to be affected adversely if a local authority with tax-raising powers was responsible for the provision of public services on Ascension? What would happen, for instance, to the revenue from licences for fishing in the waters round Ascension which at present go to St Helena? Although, obviously, there is a strong case for bringing democracy to Ascension, most people who work on Ascension are St Helenians, so would it not be far better for them to send representatives to the St Helena Legislative Council, rather than for Ascension to have
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its own representative institutions and to run the risk of the islands developing quite separately, to the disadvantage of both?
Baroness Amos: My Lords, the fiscal and economic survey that was carried out was done in full consultation with the St Helena Government. The report's main conclusion was that responsibility for the provision of common services should pass to a public authority and that revenue for the authority should be collected equitably from those using Ascension, through a system of taxes and charges. No decisions have yet been made about how to carry the report further. A number of options are being considered. The people on Ascension and those on St Helena are being fully consulted through this process. We should not want to do anything that would impact adversely on St Helena.
Baroness Rawlings: My Lords, St Helenian civil rights were granted by Charles II in 1673 by Royal Charter. At a time when Britishness and human rights seem to be high on the Labour agenda, why have the Government not granted the St Helenians British nationality? Why do they want to keep a minority of our people in a bureaucratic entanglement that denies those citizens their full rights?
Baroness Amos: My Lords, the principles on which the overseas territories Bill granting British citizenship has been agreed will mean that the people of St Helena will have citizenship rights. We have bid for parliamentary time; we have sought authority for preparing the Bill in advance from the Cabinet committee that controls the parliamentary timetable. We do not consider that any legislation to offer British citizenship to the citizens of overseas territories needs to provide a separately for St Helenians. The principles are exactly the same.
Lord Waddington: My Lords, surely the noble Baroness will agree that great concern has been expressed in St Helena at the fact that the report to which she has referred on a number of occasions paid scant attention to the implications of change in Ascension for the economy of St Helena. It is complete nonsense to say that the report canvassed in depth what the implications of that change would be. There was nothing of that nature in the report. Will the noble Baroness please think again, at least on that aspect of the matter?
Baroness Amos: My Lord, I cannot agree with the noble Lord. The survey was carried out in full consultation with the people and government of St Helena. We are currently examining the options that have arisen from the report. As the noble Lord said in his supplementary question, the majority of those who are resident on Ascension are closely linked to the people of St Helena. So what we do with Ascension and with St Helena has to take into consideration what is best for both Ascension and St Helena.
Baroness Hooper: My Lords, having said that there has been full consultation with the people of St Helena,

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will the noble Baroness give them the reassurance that the Government will closely monitor all that is happening as a consequence of the new arrangement with Ascension Island and take any necessary action?
Baroness Amos: My Lords, I can give the noble Baroness that assurance. I can do so because, as I said in my Answer, we are considering a number of options; those options will be fully consulted on before any decision is made.

NHS Administrators: Qualifications
2.54 p.m.
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
What skills administrators in the National Health Service require before they qualify for appointment as business managers exercising control over medical staff.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, it is for National Health Service employers to determine what skills are required for any post involving management of NHS staff, including medical staff. For the most senior posts, a rigorous selection process is required, including the appointment of an external assessor.
Lord Peyton of Yeovil: My Lords, I wonder whether the noble Lord has troubled to assess the effect on morale in the health service when an experienced and skilled person who has spent years acquiring those skills is obliged to submit a business plan to someone who is half his or her age, with little experience and no knowledge of either medicine or health. Is it not time that there was a widespread appreciation within the health service that accountants have never yet made anyone feel better in any way? Is it not time that people who sometimes magnify their own importance should appreciate that they are there to serve their colleagues?
Lord Hunt of Kings Heath: My Lords, I think it was the internal market introduced by the previous government that brought many more accountants into the health service. Much of the managerial and other decision-making responsibility in hospital trusts is devolved to clinical directorates which are usually headed by doctors, and by nurses and other professionals in a limited number of cases. Business managers are there to advise and support those clinical directors, not to dictate to them. I should be very surprised if, in the NHS, there were situations such as those described by the noble Lord. It would be the clinician who would have ultimate responsibility for the way in which matters were conducted and who would then be reporting to the senior management of the hospital trust.
Lord McCarthy: My Lords, the noble Lord, Lord Peyton, mentioned business skills. Does the Minister
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agree that certain skills are required of the medical staff, including consultants, when they are put in charge of non-medical staff? I refer, for example, to general managers. If, as I believe, what is required of them is very little in the way of management skills, does the Minister further agree that it may be just as well for patients that someone in the hospital knows something about management?
Lord Hunt of Kings Heath: My Lords, if we are to modernise the National Health Service, we need high calibre leadership and high calibre management. We have a very skilled and committed workforce in the NHS, including managers. Many of our managers are doctors and nurses who have transferred or who continue in clinical positions but also take on management responsibilities. I accept what my noble friend says in that we need to do more to support people in leadership positions. That is why we are making all NHS employers accountable for the training and development of all their staff, and why we are establishing an NHS leadership centre to help to develop the skills of everyone in the health service.
Lord Clement-Jones: My Lords, many of us agree with the Minister that in order to go forward the health service needs high-quality leadership, whether that comes from clinicians or from managers. Will the Minister give more details about the setting up of the leadership centre which was promised in the national plan by 2001? Can he say also what budget is being devoted to the setting-up of the centre?
Lord Hunt of Kings Heath: My Lords, I cannot give the noble Lord details of the budget yet. I shall be happy to supply that information when it becomes available. Among other things, we envisage the centre providing, first, an overarching leadership framework for the National Health Service to confirm and disseminate common leadership values, which is important to ensure consistency of approach throughout the health service. We envisage that it will also set competencies and standards for leadership activity at all levels. Again, I make the point that leadership will involve not merely general managers but many clinicians, nurses and other professional staff.
Lord Laming: My Lords, does the Minister agree that the time has come to give priority to the development of a proper system of performance management, so that the work of every doctor and every unit is consistently evaluated against volume, effectiveness and value for money?
Lord Hunt of Kings Heath: My Lords, the noble Lord will be glad to know that we have agreed in principle with the British Medical Association that the new consultants' contract will make annual appraisal and effective job plans mandatory for all consultants

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from April of next year. Having agreed the principle, we are now engaged in discussions on the details with the BMA.
The Countess of Mar: My Lords, is the Minister aware that I am becoming more and more worried about his answers to these questions? It seems that we are setting up an enormous bureaucracy in the National Health Service. Everyone will be expected to fill in bits of paper to justify his or her occupation, stating how many patients are being treated and how many have recovered. Can the Minister give me an assurance that this will not be so and that doctors' priority will be the patients? Can the noble Lord also assure me that clinical directors still have some contact with clinical work? The myth is that they were no "blankety-blank" good as doctors, so they have gone into administration.
Lord Hunt of Kings Heath: My Lords, the whole point of having clinical directors is to enable men and women who are practising clinicians to be involved also in leadership of their particular section of the hospital, or NHS trust. Surely that must be right. The more that people in leadership positions are involved in the experience of dealing with patients and of providing front-line services to them, the more effective those organisations are likely to be. I can assure the noble Countess that we are also very keen to ensure that we keep administrative costs to a minimum; indeed, from a figure of 5.3 per cent of total budget in 1997–98, they fell to 4.6 per cent by April of this year.
Lord Elton: My Lords, will the new arrangements allow for doctors, and others, in the National Health Service to record the amount of time that they spend on filling in forms, as well as on undertaking other activities?
Lord Hunt of Kings Heath: No, my Lords. We need to ensure that we keep bureaucracy to a minimum. We must enable clinical directors not to be administrators or form-fillers, but to lead their colleagues in ensuring that resources are used effectively and that high-quality services are delivered.
Earl Howe: My Lords, to what extent does the National Heath Service participate in the Investors in People initiative?
Lord Hunt of Kings Heath: My Lords, we are very much involved in that initiative. We have encouraged many individual NHS organisations to develop systems and processes in order to meet those standards. In addition, as I have already said, we expect every NHS organisation to be a good employer. We shall be monitoring that situation most effectively and rigorously over the next few years. If we are to meet the commitments in the national plan and recruit and retain more staff, we must be good employers. We must ensure that staff are dealt with fairly, effectively and in a supportive environment.

Russia: Child Welfare
3.3 p.m.
Baroness Cox Baroness Cox asked Her Majesty's Government:
What support they are giving to charitable organisations working to promote the welfare of children in the Russian Federation.
Baroness Amos: My Lords, the Department for International Development finances two projects in the Sverdlovsk region, to improve child mental health services and to improve services for vulnerable children. Both are managed by charitable organisations. The DfID has also supported projects run by British and Russian charitable organisations though the Health Small Projects Scheme.
Baroness Cox: My Lords, I thank the Minister for that encouraging reply. I must declare an interest because I am involved in several programmes for orphaned and abandoned children in Russia—programmes that are growing fast due to the enormous dedication of Russian colleagues working in difficult conditions. Is the noble Baroness aware that the funding agencies of the European Commission do not currently support charitable organisations if they have any links with the Russian Government? That is most unfortunate because such links can be extremely helpful in ensuring the effective implementation of programmes, their accountability and their sustainability. Can the noble Baroness say whether Her Majesty's Government would consider asking the European Commission to review its funding criteria on the matter?
Baroness Amos: My Lords, perhaps I may, first, pay tribute to the tireless efforts of the noble Baroness, Lady Cox, as president of Christian Solidarity Worldwide. Indeed, her efforts are well known in this House and Christian Solidarity Worldwide has carried out a range of family-focused childcare projects in Russia.
In response to the noble Baroness's specific question, I must tell her that I am not aware of any such blanket policy on the part of the European Commission with regard to funding agencies with links to the Russian Government. However, I shall be happy to investigate this further. Perhaps the noble Baroness will be good enough to provide me with any further details that she may have.
As regards the British Government's funding policies, many of our projects in Russia are led by, or involve, British NGOs, which are working in partnership with Russian official bodies.
Lord Archer of Sandwell: My Lords, as my noble friend is aware of the work carried out by Christian Solidarity Worldwide, especially the sterling work of the noble Baroness, Lady Cox, in establishing schemes such as those aimed at providing family fostering and

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child protection services, can she say whether there is any plan to ensure the long-term viability of projects that begin from something that is rather shorter term?
Baroness Amos: My Lords, I should point out to my noble and learned friend that sustainability is always the key consideration at the outset when we are looking at the kinds of work that we shall be funding from the department. We include at the planning stage of all our projects the issue of sustainability; indeed, we monitor the question of sustainability during the lifetime of our projects.
As regards foster family care, I can tell the House that we now have a health and social care partnership scheme. If there are any organisations planning to do more work in this area, I hope that they will be encouraged to apply for participation in that scheme.
Lord Hylton: My Lords, are the Government fully seized of the scale of the problem facing children in Russia? Are there not some 40 million children growing up in poverty, over 400,000 in very unsatisfactory, old-style institutions and thousands of street children, as well as other children at risk in all the major cities?
Baroness Amos: My Lords, we are well aware of the scale of the problem facing children. In fact, we recently set up a vulnerable children's project, which will be funded to the tune of £750,000. In addition, we are looking at a number of health-related projects that will also have an impact on children and on families.
Baroness Nicholson of Winterbourne: My Lords, I thank the noble Baroness for her excellent earlier reply. I can assure her that not only is there no blanket opposition to funding children's programmes by the European Commisson but that also, over the region, many millions of ecu are being dedicated to NGOs working with children. However, perhaps I may remind the noble Baroness of the great difficulty that we all face in the region in respect of trafficking in children who have been abandoned and are now being neglected—children for sale. I urge her department to put some finance behind that as, indeed, the European Union is now doing.
Baroness Amos: My Lords, I can tell the noble Baroness that we share her concerns about child trafficking; indeed, it is one of the areas that the DfID, with the FCO and the Department of Health, has been considering in terms of protecting children from such trafficking.
Lord Alton of Liverpool: My Lords, has the noble Baroness had a chance to consider the report that I gave recently to her officials relating to street children in Moscow, the 5,000 children in orphanages in and around the Moscow area and, in particular—alluding to the points just made—the trafficking that is now taking place with the selling on of children into prostitution? Is the noble Baroness aware of the
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punitive tax regime that applies in places like Moscow against foreign charities operating there and that new laws are currently being drafted? Will she ask her officials to do all that they can to remove the disincentives on foreign charities wishing to become involved in this important work?
Baroness Amos: My Lords, I can tell the noble Lord, Lord Alton, that we have been looking at the report. We are considering making a detailed response to it in the light of what we are already doing in Russia. I can tell the House that over the past nine years we have spent about £200 million in Russia. Our current expenditure is to the tune of about £27 million per year. On the specific question of the punitive tax regime, I shall take that point back to the department for consideration.
Baroness Rawlings: My Lords, while supporting Russian children's charities, will they also consider supporting one of the most important children's charities in Bulgaria, the Free and Democratic Bulgaria Foundation, which works with the British charity, Childhope? One of its main aims is to deal with the world-wide problem of street and vulnerable children. Can the Minister assure the House that essential basic support will be given to this worthwhile charity, which is vital as Bulgaria works towards European Union membership?
Baroness Amos: My Lords, I am sure that the noble Baroness is aware that we have very clear criteria against which we make decisions about which charities we will fund. I am unable to respond in respect of one specific charity, but I will take that question away and write to the noble Baroness. We are funding a range of NGOs working with children across the European Union as well as in Russia.
Lord Laming: My Lords, is the Minister aware of the work of the Russian European Trust? It is supported both by DfID and the task programme of the European Union which is trying to set up social care services across Russia in order, apart from anything else, to try to halt the decline in life expectancy in that country.
Baroness Amos: My Lords, I am aware of the work of the trust. One of the areas at which the department is looking in detail is the social fabric in Russia and ways in which we can help to sustain the systems of social services and social care.

Teacher Shortages
3.11 p.m.
Baroness Sharp of Guildford Baroness Sharp of Guildford asked Her Majesty's Government:
What measures they propose to introduce to alleviate the present shortage of teachers in schools.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, in January there were more teachers in maintained schools in England than at any time for a decade. Over 99 per cent of posts were filled. The latest evidence suggests that this remains the position. New funding is helping to maintain recruitment. In this financial year this includes £70 million to encourage more graduates to train as teachers by means of the training salaries, £4 million to improve teacher recruitment in London, and encouraging trained teachers to return to the profession.
Baroness Sharp of Guildford: My Lords, I am grateful to the Minister for her reply and am glad that she has stressed that there has been an increase in the number of teachers, but they are mainly in primary schools, not in secondary schools. Is she aware of the fact that the average size of class in secondary schools has increased over the past three years; and that in a number of subjects, particularly mathematics and science, there is an acute shortage of teachers and many classes are being taught by non-specialists? Is she further aware that teacher training colleges for secondary school posts are 1,500 people short of their targets for this year? Is the Minister conscious of the real crisis in a number of these areas? Does she feel that the department is doing enough to meet that crisis?
Baroness Blackstone: My Lords, I think it is a little exaggerated to describe the overall national picture as a "crisis". The Government accept that there are some parts of the country—London is the most notable example—where there are severe shortages, particularly in certain subjects in secondary schools. As a result of the Government's intervention, there has been a big increase this year in the number of teachers applying to work in secondary schools in the shortage subjects just mentioned—mathematics and science—and an even bigger increase in the number of both young and mature people coming forward to teach technology where there was also a serious shortage.
Baroness Blatch: My Lords, the Minister has ignored the number of schools now operating a four-day week, depriving children of 20 per cent of their education. I wonder why the noble Baroness made no reference to that.
Can the noble Baroness comment on the massive recruitment programme in other countries for teachers for our secondary schools? What is being done to ensure that such teachers are entirely familiar with the structure of education in this country, with the national curriculum and with the particular schools in which they will work? What is the formal arrangement for accepting them and for ensuring their competence in the classrooms of our secondary schools?
Baroness Blackstone: My Lords, only two schools are now teaching a four-day week, so it is important that we do not exaggerate the number. This compares quite favourably with the very large number of schools in the 1980s, especially in London, that were teaching
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a one and two-day week with some pupils being kept out of school for several weeks in a row. As soon as the Government heard about those two schools, they took action to intervene. We asked the Teacher Training Agency to provide additional support and worked with the LEAs to do the same. Perhaps it will reassure the noble Baroness to know that substantial numbers of teachers are now applying to teach in those schools and that the interviewing process is about to begin.
On the second question and overseas-trained teachers, it is important that where overseas-trained teachers are recruited they are properly prepared to work in our classrooms. There is a programme under way to ensure that that happens.
Lord Dormand of Easington: My Lords, the Government are to be congratulated on the new incentive payment of £6,000 that I am sure will be successful in enticing youngsters into the teaching profession. Will the Government keep this under review? It may be necessary to increase that payment at some time, but it is certainly a step in the right direction. Is the Minister aware of the very warm welcome given to the 20,000 classroom assistants, a post for which the teaching profession has been asking for many years? However, will the Government think again about performance-related pay? Some of us think that it may cause some kind of disruption, which certainly would not help recruitment to the teaching profession.
Baroness Blackstone: My Lords, I answer the last point first. The Government believe that performance-related pay will reward really high quality teachers in the classroom and will be beneficial to teacher supply in that it will keep more people in the profession and attract good graduates.
I am grateful to my noble friend for the welcome he has given to the increasing number of classroom assistants. Clearly, that is very important from the point of view of support to teachers. Classroom assistants facilitate their job and make it easier.
The Government will keep the training salaries under review. Although it is very early to assess their impact, there has been a very substantial increase in the number of applications as a result of the introduction of this change.
Baroness Walmsley: My Lords, will the Government address the haemorrhaging of experienced teachers from the profession and the very worrying number of PGCE students who, despite the training salary, are leaving the course before the end?
Baroness Blackstone: My Lords, the training salary was introduced only this year so I think it is rather early for the noble Baroness to suggest that people are leaving courses; they have been running for only two or three weeks. But the noble Baroness may have information that I do not have.

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On the wastage of teachers from the profession, it is important to do all that we can to try to retain teachers. Again, the statistics are good. In the latest year for which we have the figures—1998–99—there was a fall of 1.6 per cent in the number leaving the profession. It is normally between six and eight per cent, so that is a substantial drop.

Freedom of Information Bill
3.19 p.m.
The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Falconer of Thoroton.)
Lord Mackay of Ardbrecknish: My Lords, I do not want to make a habit of this but, like the political parties Bill, the way the Government have dealt with this Bill is entirely unsatisfactory. I wonder whether the Government should not reconsider their decision to start the Committee stage today and leave the Bill to a later date when they might, with a bit of luck, get it right. They could do so because clearly there is no sense of urgency. This is the first day in Committee; the Second Reading took place on Maundy Thursday. In case noble Lords have forgotten when that was, it was 20th April. Urgency is not key to the Bill, so we could give the Government a little more time to get it right.
The Government tabled a series of amendments some time ago. Shortly afterwards they tabled another series of amendments and withdrew the original amendments. Noble Lords can imagine the confusion that that caused among those of us who are interested in the Bill. However, chaos broke out—this is the burden of my complaint—when the groupings list was produced last evening. I do not believe that any noble Lord will ever have seen so many errors. For example, Amendments Nos. 6 or 7 appeared after Amendments Nos. 26 and 27. Whole rafts of amendments were left out. It was a shambles. It took staff at the Home Office all morning to try to sort it out. They still have not sorted it out. I shall explain the details later if we go ahead with the Bill. That will be a little treat for the Minister.
If the Bill team cannot even get the groupings right, I suggest that the Government give them a little more time and bring the Bill back in the next Session. Clearly, minds are not concentrated on the Bill. I refer to the Home Office with all the Bills that it has in progress and all the problems that the noble and learned Lord, Lord Falconer, has further down the river. I suggest that if we are to get this important Bill
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right it would be better for the Government to abandon it today and bring it back in a proper form in the next Session.
Lord Hylton: My Lords, on an equally serious note, if, as we know, private Bills can be carried forward from one Session to the next, why on earth cannot that apply to government Bills?
Lord McNally: My Lords, there are three interrelated but not necessarily consequential points here. First, the past 24 hours have been a shambles. The House deserves an apology for that.
Noble Lords: Oh!
Lord McNally: My Lords, unless Back-Benchers on all sides of the House defend their rights, the power will lie with the Government. I assure Government Back-Benchers that the past 24 hours have been a shambles.
Secondly, as the noble Lord, Lord Mackay, said, we have again had an inordinate wait for a Bill. I am sure that the Minister will talk about consultation and listening to representations. However, it is not a good way to deal with legislation. We made this point the other day. In the interests of reforming and improving governance—I say this without trying to score party points—there is a need to address this matter and address it quickly.
My third point is non-consequential. There are suspicions that not just the Opposition—after all, the Conservatives did not introduce a freedom of information Bill during 18 years in office—but even some people in the highest reaches of the Home Office would not mind losing this Bill. I shall be flanked later by the noble Lords, Lord Goodhart and Lord Lester. I could not afford to employ them if I wanted to. That is some measure of the determination of these Benches to have a freedom of information Bill. I hope that the Government will apologise for the shambles, set to work to improve the workings of the House so that we do not have these delays and move with all possible speed to deliver a freedom of information Act.
Lord Falconer of Thoroton: My Lords, I shall respond to the points that have been made. First, the noble Lord, Lord Mackay of Ardbrecknish, said that the Second Reading took place on 20th April and that the first Committee day is today. The timing was agreed with the other side through the usual channels. Between 20th April and today a significant number of amendments have been tabled. Indeed, some of them have been changed as a result of further discussion on the Bill. I hope that noble Lords will consider that the amendments which have been tabled improve the Bill and that therefore the period of time which has elapsed between the two stages has been worthwhile.
I shall speak in detail on the situation over the past 24 hours. At about four o'clock yesterday afternoon the Home Office gave the Whips' Office a list of groupings. As the noble Lords, Lord Mackay of Ardbrecknish and Lord McNally, have said, the list

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was inadequate, for which I apologise on behalf of the Home Office. At the request of the Whips, a further list was provided at six o'clock. That also contained substantial errors and further changes were required. The Whips indicated that a further list would be provided at 10 o'clock this morning. I am informed by the Whips' Office that it was provided between 9.30 and 10 o'clock this morning. The noble Lord, Lord Mackay of Ardbrecknish, may shake his head but my information comes from civil servants who work in the Whips' Office, not from the Whips.
Lord Mackay of Ardbrecknish: My Lords, the Government Whips' Office had an amended list—I shall not go into the details as that would embarrass the people who worked on it—and were busy checking it. We did not receive the list until after 12 o'clock.
Lord Falconer of Thoroton: My Lords, between 10 o'clock and approximately 10 minutes to 12 further work was done on the list by the Whips in consultation with the Home Office. It was then handed over to the opposition parties. I accept that that is not at all a satisfactory state of affairs. There were plainly errors. I do not believe that that situation would happen again, nor that it should, and I apologise to the House on behalf of those involved with the Bill. However, I believe that the whole House wishes to engage in a proper debate on the Freedom of Information Bill. I consider that the right course at this stage is to get on with the Committee stage as expeditiously as possible. If any problems arise out of the incidents of the past 24 hours, I hope that, with co-operation, we can get round them.
Lord Strathclyde: My Lords, I cannot allow the noble and learned Lord to get away with what he said about our agreeing to delay the Bill from Maundy Thursday until today. That is simply not true. Indeed, on many occasions we asked what had happened to the Freedom of Information Bill and were told that the Home Office did not have it ready yet. On that basis we agreed to take forward other Bills.
We always move forward with co-operation and with agreement between the two Benches, as we are doing today. I hope that the noble and learned Lord will reconsider what my noble friend Lord Mackay of Ardbrecknish and the noble Lord, Lord McNally, said. This Bill is a shambles and it is not the only one. The Session will end in a few weeks' time. Would it not be better to scrap this Bill and to bring it back, properly drafted, in December?
The Lord Privy Seal (Baroness Jay of Paddington): My Lords, as the noble Lord the Leader of the Opposition has spoken, I shall respond on behalf of the Government. I believe that my noble and learned friend made the point that the arrangements for the Committee stage—that was the matter that the noble Lord, Lord Mackay of Ardbrecknish, challenged—had been agreed through the usual channels. That has been confirmed by the Chief Whip and therefore I believe that that is accepted. The dates for the
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Committee stage and all of the normal processes were agreed. Therefore, to challenge the timing of the first day of the Committee stage is not appropriate.
On the wider and more general political point made by the noble Lord, Lord Strathclyde, at every turn we have had this discussion about the number of Bills before your Lordships' House. I do not want to weary noble Lords or to delay the Committee stage by referring again to the fact that we have an average number of Bills before us compared with previous Sessions and previous administrations. I do not think that the noble Lord, Lord Mackay, or, indeed, the noble Lord, Lord Strathclyde, will get much support from other quarters, except perhaps from their own Benches, in asking for the postponement of the Bill.
Lord Strathclyde: My Lords, of course we agreed to today's proceedings but we did not agree to the delay. That is the point my noble friend made. Provided it is clearly understood between us that we take no share of the blame for the delay, which has been caused entirely by the Government, we are content for the Committee stage to proceed.
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
3.30 p.m.
Lord Lucas Lord Lucas moved Amendment No. 1:
Before Clause 1, insert the following new clause—

Freedom of Information Bill

  PURPOSES OF THIS ACT
  (" . The purposes of this Act are to enable and encourage the provision of information by public authorities to the public.").
  The noble Lord said: Amendments Nos. 2 and 3 are grouped with Amendment No. 1. I shall leave it to the proposers of those amendments to advocate their respective merits.
  If a freedom of information Bill is to work, it is immensely important that it produces a change of culture among public authorities; and that it is seen and believed to have produced that change of culture by ordinary people who have to make use of the Act. We have discussed extensively our feelings about the way in which the Government have chosen to approach the Bill. However, as drafted, the Bill begins with a right to information and then consists in almost its entirety of complicated and extensive mechanisms for denying that right.
  This is a situation which cries out for a purpose clause. A purpose clause is a provision in the light of which all subsequent provisions can be interpreted. It sets the whole direction of the Bill in the minds of the civil servants and the public, and of the commissioner and anyone else who has to take decisions under the Bill. The noble and learned Lord, Lord Falconer, referred to achieving the right balance. A purpose clause will make that easier to achieve in practice. It will give us the necessary assurance that this Bill will takes us, perhaps gradually, into a new world of openness and that we shall not experience an

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  accumulation of public authorities digging their toes in, trying to find ways of not providing information under the technicalities of the Bill.
  I remember Second Reading. I have a good memory. The noble and learned Lord, Lord Falconer, was right to point out at Second Reading that the House of Lords Select Committee had agreed not to press for a purpose clause. It was discussed. We came to the conclusion that in the context of the other suggestions we were making about the Bill a purpose clause was not necessary. Unfortunately, the Government have chosen not to accept many of the suggestions we made. In various areas, and in recent amendments, they have gone back on their previous position and have made this a less helpful Bill than the measure before us at Second Reading, in particular as regards government information.
  In considering the changes to the Bill since the Select Committee debated it, Clause 34 is new. Such changes to the Bill will weight the decision by officials towards not providing information. However desirable, technically, these changes are, if we do not have some overriding duty, principle and direction to the Bill, they will prejudice civil servants in favour of not releasing information and of using the exemptions in the Bill to decline to provide information—or even to decline to provide the information that there is information.
  As we debate other clauses, we may discover that the Government have had a change of heart on Clauses 28, 34 and other major sticking points in the Bill and that we do not need a provision which so clearly sets the direction of the Bill as a purpose clause would do. However, we have had no such indication. In the absence of such an indication, I hope that this Committee will accept a purpose clause—if not now, in due course. I beg to move.
  Lord Mackay of Ardbrecknish: It may be for the convenience of the Committee if I speak now. In this group of three proposed purpose clauses I have put forward my effort in Amendment No. 2 in which I indicate that,
  "The purpose of this Act is to facilitate public access to information held by public authorities".
  In 1994, the Conservative government introduced the Code of Practice on Access to Government Information, and in strengthening that code in 1997 there was a purpose clause. Although it was not a statutory code, it made clear that it required public authorities to make available information subject to a limited number of exemptions—a more limited number of exemptions than we have before us in this Bill.
  The purpose clause in the code was located at the beginning of the document. It set out clearly that the approach of public authorities must,
  "in all cases be based on the assumption that information should be released except where disclosure would not be in the public interest".
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  As drafted, the Bill contains no clear statement of the purpose of the legislation. Government Bills in this Parliament have contained purpose clauses. I have been reminded of that by the sad events of the past week. Section 1 of the Scotland Act says that there shall be a Scottish Parliament. That was a purpose clause. It was totally unnecessary to the Act but the purpose of the Act was clearly set out.
  I do not say that my proposed purpose clause is the best. I shall not adjudicate between my noble friend and the noble Lord, Lord Lester of Herne Hill. I anticipate somewhat what the noble Lord will say, but I believe that we all want stated at the beginning of the Bill a clear declaration of its purpose. We are not alone in wanting that. The Public Administration Select Committee of another place said clearly in its report of July 1999:
  "Purpose clauses can be used to indicate clearly which of two or more competing values should be uppermost when a decision is made. In this Bill, such a clause could have the effect of encouraging Commissioner, Tribunal and judges to lean towards disclosure. Perhaps more important, though, it could influence those people in departments and other authorities who actually have to operate the legislation.
  In addition to the Public Administration Select Committee of another place, the Data Protection Registrar, Dame Elizabeth France—under the proposals she will become the information commissioner—has argued for a purpose clause. The Select Committee reported that,
  "The Data Protection Registrar argued that a purpose clause was required to make clear the balance that should be struck between privacy and Freedom of Information, and especially to ensure that the inbuilt advantages which privacy possesses—from the European Data Protection directive and the European Convention on Human Rights—would not overwhelm the right to information".
  These are tensions to which we shall return later.
  "[Mrs France] argued that the balance should be defined in the Act, and not left to the Information Commissioner and Tribunal".
  The Government responded. They amended the title of the draft Bill and made the clause relating to the right of access to information the first clause. However, I do not believe that that is a substitute for a purpose clause at the beginning of the Bill. Where other countries have freedom of information Acts—I look to New Zealand and Australia—they have purpose clauses. I believe that there is much merit in a purpose clause especially when we know that further down the track there will be considerable arguments as to whether a piece of information should be disclosed. If there were a clear statement of its aims at the beginning of the Bill, it would guide people. I hope that the Government will at least accept the principle of a purpose clause even though they may not like the specific wording of the amendments before the Committee today.
  Lord McNally: I welcome the Minister's consideration before Report of the three proposed new clauses—and even perhaps the Government's own suggestion of a fourth. As the noble Lord, Lord Lucas, indicated, I hope that the noble Lord will not cling to the absence of a recommendation by the committee,

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  ably chaired by the noble and learned Lord, Lord Archer, of which I and the noble Lord, Lord Lucas, were members. He can only call us in aid if he accepts our other recommendations as well.
  More importantly, there has been a 25-year commitment by the Labour Party and an initial White Paper which was universally acclaimed by those who had campaigned for freedom of information. There was then the long retreat by the Home Office. The issue was moved from the Cabinet Office to the Home Office. I do not know whether the noble and learned Lord's presence means that he has dragged it from the Home Office's scaly grip. Nevertheless, a purpose clause would restore confidence that the Government are sincere as regards freedom of information.
  We have been aware from the beginning that the main danger was not whether the Bill would fail to be enacted—we shall get it through—but whether, once it had been enacted, the culture of secrecy that still pervades Whitehall would overwhelm it. Those who are aware of freedom of information Acts in other countries and who have studied the case for Britain often argue that a purpose clause would provide the confidence and guidance that is needed to overcome the culture of secrecy that we must overcome if freedom of information is to become a reality.
  I want to put one further point to the Minister at the start of our debate. Today's Guardian mentions an opinion poll that contained one remarkable but encouraging finding. The poll asked whether Britain was becoming a more modern democracy, to which 64 per cent said "Yes". The Minister will recall from the Maclennan agreement, which was made before the election, that the Liberal Democrats and the Labour party were committed to trying to create a modern democracy. Several pieces of legislation that have already been enacted during this Parliament have made contributions in that regard. It is encouraging that public opinion recognises those efforts to modernise our democracy.
  History will judge the Government by the quality of this Bill. If we can improve it in such a way that we are all proud of it—we shall be as constructive as we can be during the next few days in that regard—we shall have done a good few days' work. We are convinced that Clause 1, which clearly sets out the Bill's objectives, will counter the culture of secrecy and give confidence to those who want a proper working freedom of information Act.
  3.45 p.m.
  Lord Archer of Sandwell: I was not able to participate in the Second Reading debate because I was out of the country at the time. Had I been here, I should have welcomed the fact that at last the House is discussing a freedom of information Bill to which, as the noble Lord, Lord McNally reminded us, my party has looked forward for a long time. Unlike the noble Lord, Lord Mackay of Ardbrecknish, some of us on
  890
  this side do not view with equanimity a proposal to defer the Bill yet further. I should also have welcomed the fact Clause 1 begins with a general declaration of principle. It states that a
  "person making a request for information … is entitled … to have that information communicated to him".
  However, my welcome might have been somewhat restrained because the Bill goes on to state that that entitlement is subject to Part II of the Bill, which adds up to a less than resounding declaration. But the general principle is that there is an entitlement subject to exceptions—the relationship is not the other way round.
  Unhappily, the Bill does not fulfil that early promise. I understand why the three noble Lords who have spoken may want to redress the balance somewhat by spelling out a more enthusiastic sense of purpose than the Bill presently conveys. I am sorry that, at this early stage in our debate, I have the misfortune to differ from them.
  Two noble Lords have already pointed out that the Select Committee, of which the noble Lord, Lord Lucas, the noble Lord, Lord McNally and I were members, considered the matter and decided not to recommend a purpose clause. We addressed the arguments that have been persuasively advanced this afternoon. We said that a purpose clause could serve one of two objectives—or perhaps I should say that an objects clause could serve one of two purposes. It could make a difference to the way in which those who have to construe the Bill approach their task, and it could redress the balance that the Bill was trying to strike between freedom and confidentiality. We thought that it was better to consider the balance that we want to achieve and to try to reflect that in clear drafting, which would help us to understand what we are enacting. I still hope that, with my noble and learned friend's co-operation, we may achieve that, thus making a purpose clause unnecessary.
  Alternatively, the committee said, the object of a purpose clause is to resolve ambiguities. We preferred to eliminate those ambiguities if we could. We saw the point of having a provision which reflected the vision that we all shared of the changes that were necessary. We wanted, as my right honourable friend the Prime Minister said in the preface to the White Paper, to change the culture of secrecy. We therefore added that we wanted to amend the Bill's long title. We wanted to replace the phrase,
  "Make provision for the disclosure of information"
  with the phrase,
  "Facilitate the disclosure of information"
  because we believed that that was the Bill's purpose, and we did not want the trumpet to give an uncertain sound.
  It may be too much to hope that my noble and learned friend has noticed my Amendment No. 368, which, admittedly, is a very long way ahead and which was tabled at a rather late stage. It would amend the long title in the way that I have described. I had ventured to hope that it might have been included in

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  the grouping that we are currently considering, but I fully understand the reasons why it was not—I share part of the blame in that regard.
  When my noble and learned friend replies, I hope that he will explain the way in which the Government propose to clothe the bare words of the Bill with a sense of purpose. I hope—the Select Committee made this suggestion in paragraph 58 of its report—that the Government will launch an intensive programme of training for the officials whose daily work we hope will be infused with a new readiness to open the windows, to let the public see inside and to blow away the cobwebs. We heard about how effectively the Irish Government had undertaken that project.
  My noble and learned friend Lord Williams of Mostyn, who is not currently in his place, told us that the Home Secretary had invited him to chair a group on openness in the public service. The Government must share part of the vision that we adopted at that time. When my noble and learned friend replies, he may tell us whether that group has now reported or whether it has become entangled in the cloak of secrecy.
  If my noble and learned friend does not agree with the three noble Lords who have already spoken, he may at least be able to show that he has caught our mood. I hope that the Government are enjoying the prospect of placing the Bill on the statute book. My amendment may, in its modest way, hold out a hand to him and help him to achieve that.
  Lord Hunt of Wirral: I congratulate the noble and learned Lord, Lord Archer of Sandwell, on achieving a first. This is the first instance I can recall of someone managing to introduce a reference to the last amendment on the Marshalled List during a debate on the first. I understand his reasons. There is a great deal of sympathy in the House for the idea of inserting a clearer statement of intention.
  My noble friend Lord Mackay of Ardbrecknish referred to the clear statement in the code. On Second Reading, I reminded the Government that when Labour was last in office, in 1979, the government produced a Green Paper recommending a code rather than legislation. I take responsibility for the introduction of the current code and recommending its strengthening.
  I always had in mind the clear understanding that as soon as we progressed to legislation we would need to list a huge number of exemptions. I was loath to allow that to happen because it would give the wrong impression of the purpose of such legislation. We now have a new government and a new intention to put a Bill on the statute book. I accept that. However, I hope that the Minister will consider ways in which he can make the purpose of the Bill clearer. Several points are made in the briefing papers we have received on the subject. The issue was aptly put by Public Concern at Work, who said:
  "While the first five lines of the Bill clearly give the public a general right to information, the following twenty three pages set out a complex system of inter-related and overlapping qualifications and exemptions".
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  We need to listen carefully to my noble friends Lord Lucas and Lord Mackay and to the Liberal Democrats and try to find a way of demonstrating that the Bill is intended to promote greater openness and accountability.
  My concern is shared by a number of outside commentators and a number of noble Lords. As it stands, the Bill would encourage less openness than is presently allowed for under the code. We cannot accept that.
  We greatly welcome the fact that we are at last able to get down to line-by-line scrutiny of the Bill. We have waited a long time. If I have a criticism, it is that we are being asked to improve the Bill at the last moment, in the final days of the Session. I hope that the Government will allow us enough time to devote ourselves to the task in hand. Now that there is to be a Bill, let us make sure, as the noble Lord, Lord McNally, said, that once it gets on the statute book it is at least as effective as the non-statutory code. I support the idea of a purpose clause.
  Lord Clinton-Davis: I do not know why some noble Lords insist on the amendments in the light of what they have said. It is important that we test whether the Bill is ambiguous or less open than we would like. The only way to do that is by looking at the information set out in the Bill, not by looking at the general information that noble Lords have mentioned. The noble Lord, Lord Hunt, did not welcome that.
  I hope that we will look carefully at the Bill. I share to a great extent the views of the noble and learned Lord, Lord Archer of Sandwell. I have not disagreed with him about civil liberties issues in the past, so I see no reason to do so in this case. However, I hope that we get on to ensuring that the Bill conforms to what we have said about it in the past by opening rather than closing the channels of information that are available through government departments.
  I worked in the Department of Trade between 1974 and 1979. It then became the Department of Trade and Industry, and I served there again in 1997. On neither occasion were the civil servants inclined to shelter the Government from the information that is set out. I hope that the House echoes my belief in opening rather than closing the avenues of information that are available.
  Lord Lester of Herne Hill: I was unable to be present on Second Reading, but I was here on 11th December 1997 when I gave a strong and unequivocal welcome to the Government's White Paper. This is my first opportunity to congratulate them on the Bill. I shall explain briefly why a purpose clause matters and would make a difference.
  I am not normally a fan of purpose clauses. I am in favour of them only if they serve a practical purpose. The problem is that we are asking public authorities, the information commissioner and the courts to interpret and apply this constitutional measure in a general constitutional vacuum. Unlike many countries, this country does not have a strong Bill of

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  Rights. We now have the Human Rights Act 1998, which is very welcome, but it guarantees freedom of speech only in the narrow way in which Article 10 of the European Convention on Human Rights has been interpreted by the European Court of Human Rights. The Strasbourg court has said that there is no convention right of access to information about the workings of government. That is a narrow view.
  We do not start with a strong constitutional value in law that gives a positive right of access to information, subject only to necessary exceptions. I am not wedded to any of the three versions of the purpose clause that have been put forward, including the one that stands in my name. Whatever version is put forward, we need a strong expression of a constitutional right for the citizen to have access to information about the workings of government and other public authorities.
  That can be achieved in various ways. A purpose clause is one possibility. Alternatively, the Bill could specify an appropriate standard for weighing and balancing the right to free speech against other public interests and rights. So far the Government have resisted the idea of putting in an appropriate standard of significant or substantial harm, which would serve the same purpose. The Bill therefore needs a purpose clause to establish a strong constitutional right to free speech, subject to necessary exceptions. It would be helpful if the Minister could tell us that he agrees that, even though they are not expressly stated, the purposes of the legislation include facilitating public access to information held by public authorities and the purposes described in Amendment No. 3. If he cannot give us that assurance, I should be grateful to know why not. If we could put in a proper standard to enable weighing and balancing when we come to the harm tests, a purpose clause would be much less important.
  Finally, if the noble and learned Lord, Lord Archer of Sandwell, will forgive me, I do not agree with his Amendment No. 368. I believe that amending the Long Title would weaken the Bill rather than achieve his objective. However, it will be many hours before we reach that point.
  Perhaps I may add one further point. The noble Lord, Lord Mackay of Ardbrecknish, referred to the New Zealand Freedom of Information Act as an example with a purpose clause. I thought that the Committee might like to know that that has been of real practical value in the way that I have described. In a case called Commissioner of Police v. The Ombudsman (1988), 1NZLR 391, Sir Robin Cooke, sitting as President of the Court of Appeal of New Zealand, referred to the purpose clause in order to be able to interpret the New Zealand Act in an appropriate way. I hope that that example can be looked at before this matter is taken further.
  4 p.m.
  Lord Campbell of Alloway: I rise briefly to support the purpose clause in some form, and the form in which it has been presented from the Liberal Benches happens to attract me very much. There must be a purpose clause because this is a constitutional Bill. As
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  a general rule, I am on record in your Lordships' House as having opposed purpose clause after purpose clause, but not on constitutional Bills. Such a clause will serve as an aid to interpretation and, in this circumstance, it is essential.
  I do not want to go over the procedure, the difficulties and the arguments. The important point is that an avalanche of amendments have been tabled long after Clause 1, which is not really a purpose clause at all. We are in a total shambles and under considerable pressure. For it to be suggested that we can redress or deal with the situation wholly adequately by dealing with each qualifying amendment as it arises is asking a little too much. If we had a purpose clause, at least it would serve as a guide or beacon which may lead us out of the shambles or enable us to deal with it.
  Before I sit down, perhaps I may make the point that, whatever was or was not agreed between the usual channels, it is the Back-Benchers on all sides of the Chamber who have to deal with the shambles. I am one of them. I spoke at Second Reading and I am not sure that as yet I have been able to get my mind round the amendments sufficiently to be able to speak to many of them in Committee.
  Lord Brennan: In some Bills a purpose clause is appropriate. However, for the following reasons, I do not believe that this is such a Bill. First, I hope that the English language has not reached such a level of semantic poverty that the words "freedom of information" cannot be understood and their message be plain to read. We do not want a purpose clause in this Bill because its Short Title is explicit, and its longer Title is clear, that the intention is to make disclosure of information a positive purpose. That provides the key to our consideration of the rest of the Bill. By the Short and Long Titles we can ascertain the purpose of the Bill and, where we need to, have light thrown on its construction.
  Secondly, I fear that a purpose clause in a Bill of this constitutional importance would be a recipe for unnecessary, expensive and unwanted litigation. There would be litigation, if I may say so, on both sides: from those who adamantly want the information and from the bureaucrats who do not want to give it; and the purpose clause would be their vehicle for contest and delay. I do not believe that a freedom of information Bill should be the source of litigation; I believe that exactly the opposite is true. It should be there to educate the public by their obtaining information and to discipline civil servants and politicians by their knowing that they may have to give it.
  Thirdly, I do not imagine that, if the Bill is passed, the Civil Service of our country—enormous as it is numerically and in power—could implement it without a code of practice. It would surely have to be given direction. In the code of practice introduced by the previous government a key passage to the civil servants stated:

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  "The approach to release of information should in all cases be based on the assumption that information should be released except where disclosure would not be in the public interest",
  or where it was exempted under the code. I do not imagine that this Government intend that the public will receive any less than that given to it by a Tory government.
  Lord Lester of Herne Hill: I am grateful to the noble Lord. I wonder whether he will address the point that I was trying to raise: that there is no criterion in the Bill that enables the weighing and balancing to be done in a way that would avoid the kind of unnecessary litigation that he and I wish to avoid. Does he take on board the point that there is a reference to prejudice but there is no indication as to the standard to be applied by officials, courts or anyone else? That is why we need the purpose clause.
  Lord Brennan: The noble Lord, Lord Lester, anticipated my final point: that the need for a purpose clause is obviated by the attention which we should pay to the construction of the rest of the Bill in determining in each clause, item by item, the proper balance between government interest and that of the public.
  However, in examining in detail what we intend to do, I hope that we shall bear in mind the following. I was once taught by one of my legal elders, who tried to explain the difference between a Teutonic lawyer and a British lawyer, that, for a Teuton, everything is prohibited unless it is permitted, but for a British lawyer, everything is permitted unless it is prohibited. I intend, as I am sure do all noble Lords during the course of the Bill, to ensure that where the balance must be struck, our sympathies will go to the citizen except where it can be shown that they should not.
  Lord Richard: Like my noble friend who has just sat down, I am not a great lover of purpose clauses, nor, indeed, is the noble Lord, Lord Lester. Four arguments have been put in this case for the purpose clause. First, it is said that it is an aid to interpretation. Secondly, it is said that it would be a clear and definitive statement of the Government's commitment to freedom of information. Thirdly, it would be a goad to the civil servants to behave in the way in which the Bill guides them. Fourthly, I suppose that it would help to create a proper balance. Much has already been said today about the balance of the Bill.
  Provided that the Bill is in reasonable form, I believe that the effect of the clause on interpretation is fairly peripheral. I do not say that it does not exist but it is peripheral. Frankly, I do not believe that it has a great deal of effect as a goad to civil servants. It is a purpose clause at the beginning of the Bill. What is important is the way in which Ministers and the Government as a whole direct the Civil Service to behave; in other words, it is the way in which the rules governing the way in which civil servants are supposed to behave, the way in which those are drafted and, more particularly, the way in which they are enforced that are important.
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  Nor do I believe that there is a great deal that a purpose clause can do to produce a proper balance in the rest of the Bill. It can be a declaration at the beginning of a statute as to what the statute concerns.
  In relation to this amendment, the only argument that I find at all persuasive is that it would be a clear and definitive statement of the Government's commitment to a freedom of information regime. However, I do not believe that such a clause in the Bill is the only way to achieve that.
  During the course of this Bill, today or subsequently, it is important that the Government make it absolutely clear that their presumption is that information that is in the hands of the Government is disclosable unless there are strong and good reasons why it should not be disclosed. That is not the case if the balance is the other way round: that information should be retained unless the person asking for it can make a good case for having it revealed. Therefore, during the course of the Committee stage, I hope that it gradually becomes clear that this Bill is concerned with such a situation: that the Bill is about creating a balance in favour of disclosure and not about creating a balance in favour of retention. Having said that, I am not in favour of the inclusion of the purpose clause.
  Lord Dubs: At about half past three this morning, when I was going home by taxi, the driver, on discovering whence I came, asked me what we had been discussing. I told him we had been debating the Countryside and Rights of Way Bill. He said, "What is the purpose of that?" and I endeavoured to explain. However, I did not have the Bill with me or the benefit of the Long Title. If the same taxi driver were to take me home tonight—I sincerely hope at an earlier hour than 3.30 a.m., although that is up to the Opposition Benches and not the Government Benches—I hope that I can give him a clear answer.
  I am bound to say that the debate on these amendments will not help me. I do not believe that anyone, whether a taxi driver or the man on the Clapham omnibus—if such buses were to run as late as that—would have a better understanding of what we are about having listened to or heard the substance of the debate today.
  There may be other reasons for purpose clauses, but I am not persuaded. If we are talking about the persuasiveness of any particular clause—for example, Clause 13—we have to address that clause and not whether a purpose clause will somehow make matters clearer. However, I have some interest in the point raised by my noble and learned friend Lord Archer, who has tabled an amendment to change the Long Title. It seems that everything that has been said in favour of a purpose clause is an argument for a clear and sensible Long Title. If the Long Title does what it is supposed to do—with the amendment tabled by my noble and learned friend, I believe that it would—we would have no need for a purpose clause. The Long Title would be sufficient.
  Lord McNally: When the noble Lord, Lord Dubs, goes home tonight perhaps he should take the amendment in the name of the noble Lords, Lord Goodhart and Lord Lester, and show it to his taxi driver so that he can explain the purpose of the Bill in a few seconds.
  Lord Dubs: I shall leave the noble Lord to do that.
  4.15 p.m.
  Lord Falconer of Thoroton: The first group of amendments concerns the purpose of the Bill. It may be helpful if I begin my comments by saying that the Government's purpose in introducing this legislation is to ensure that the right to know is placed on a statutory basis and that, consistent with proper regard for privacy, confidentiality and the effective conduct of public affairs, the right is exercisable freely and easily throughout the public sector.
  Such a right to know would promote,

  "(a) the accountability of public authorities,

  (b) informed public debate on public affairs,

  (c) public participation in the making of decisions, and

  (d) public understanding of the powers, duties and operation of public authorities".

  Those are the purposes referred to in the proposed purpose clause put forward in the third amendment in this group.
  There has been much debate in this House and in another place as to whether the Government have achieved their aim with this Bill. We believe that they have. We have listened carefully to the arguments put forward and I hope that your Lordships will recognise that in many areas we have amended the Bill or proposed amendments for debate that reflect concerns expressed.
  Before turning to the purpose clause, I want to tell the Committee how we are approaching this stage of the Bill. Your Lordships have an opportunity to listen to the views of the Government on the Bill, virtually clause by clause, and I hope to be able to persuade the Committee, on at least some points, that the Government have got it right. I have no doubt that many noble Lords will aim to convince the Government that in some cases we have got it wrong, or at least some further tweaking or amendment of the provisions is necessary. I cannot give the Committee any assurance that we shall accept all or any of the arguments, but we are a Government who intend to listen carefully to the arguments put during the Committee stage. I hope that what comes out of this process will be a constructive experience for all involved and for the Bill.
  I entirely agree with the noble Lord, Lord Lucas, that what is required is a culture change in relation to disclosure of information. The Government intend that the Bill should act as the catalyst for that culture change. I join with the noble and learned Lord, Lord Archer of Sandwell, in enjoying the prospect of there being a freedom of information Act on the statute book.
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  I turn to the three amendments in this group. They are each designed to introduce a purpose clause. The amendment tabled by the noble Lord, Lord. Lucas, states that the purposes of the Bill are to,
  "enable and encourage the provision of information by public authorities to the public".
  The second amendment, in the name of the noble Lord, Lord Mackay of Ardbrecknish, states that the purpose of the Bill is to,
  "facilitate public access to information held by public authorities",
  That amendment is the same as a Conservative amendment tabled in another place, and it echoes a recommendation that was considered by the ad hoc Lords Select Committee, chaired by the noble and learned Lord, Lord Archer.
  As has been mentioned on a number of occasions, the committee decided not to recommend a purpose clause because it felt that it was far better to deal with the issues by detailed provisions in the Bill. The noble Lords, Lord Lucas and Lord McNally, were both members of that committee. That view was echoed by the chairman of the committee, the noble and learned Lord, Lord Archer, and in a number of speeches made in the House on this series of amendments, particularly by the noble Lords, Lord Brennan and Lord Clinton-Davis.
  We accepted the recommendation, in part, of the Select Committee to change the Long Title. We changed it from,
  "Make provision about disclosure of information",
  to,
  "Make provision for the disclosure of information".
  We did not go as far as the noble and learned Lord, Lord Archer, in the last amendment in this group, because we were advised that that was going too far in a Long Title. We believe that by changing the word "about" to "for", we provide the steer that his committee was after in the Long Title.
  I am loathe to include further clauses in the Bill that are not necessary. I do not believe that either Amendment No. 1 or Amendment No. 2 would make any material difference. In those circumstances, there is not much point in including them. I believe that Amendment No. 3 tabled by the noble Lords, Lord Goodhart and Lord Lester of Herne Hill, attempts to do much more than is attempted by Amendments Nos. 1 and 2. I do not believe that a purpose clause along the lines of this new clause is appropriate, particularly in the light of the indication that I gave at the outset of my speech.
  One must assume that such a clause would be given legislative effect by the commissioner, tribunal and courts. Therefore, it would change the balance of rights which the Bill as a whole achieves in a way which we cannot predict or control. It is not possible to say that in every case one right should trump another. The right of access to information must be balanced against the other rights to which reference has been made. Too strong a presumption in favour of disclosure for certain purposes, however worthy, over other competing rights to privacy, confidentiality and

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  so on, could lead us into conflict, for example with the Data Protection Act which is a particular problem in the Bill. Openness does not have a monopoly of righteousness because, plainly, everyone accepts that in certain cases data protection or, in other circumstances, the right to privacy should prevail. Equally, confidentiality has its proper place.
  Lord Lester of Herne Hill: I am grateful to the noble and learned Lord whose response I find extremely helpful. He persuades me that my proposed new clause may well be unnecessary. Perhaps the noble and learned Lord can assist on one matter. As the Law Lords have increasingly decided in recent cases that there is a constitutional right to freedom of expression, does the Minister accept that that must be treated with very great importance, subject only to necessary and proportionate exceptions? If that is accepted as a proper approach to the framework within which we look at this Bill, bearing in mind other fundamental rights to protect confidential information, personal privacy, the interests of good government and so on, that has a great bearing on my attitude to this matter.
  Lord Falconer of Thoroton: I accept that there is a right to freedom of expression. Equally, I accept that there are other rights as the noble Lord indicates. It would be wrong for me to seek to define with any degree of precision the ambit of those rights, but of course I accept their existence.
  If we emphasised specific purposes in a purpose clause as proposed it might backfire. For example, if business were to be inhibited from giving commercially sensitive information to the Government on the basis that it might be released under freedom of information, effective regulation of the financial sector, trade and commerce would be undermined. The public interest in FOI could, therefore, conflict with the public interest in regulation. In the light of what I have said, I ask the noble Lord to withdraw his amendment. I also ask the noble Lords, Lord Mackay of Ardbrecknish and Lord Lucas, to withdraw their amendments.
  Lord Archer of Sandwell: Before my noble and learned friend sits down, is he able to tell the Committee what became of the report of the group chaired by my noble and learned friend Lord Williams of Mostyn?
  Lord Falconer of Thoroton: If my noble and learned friend refers to the advisory group on openness, its report has been published and placed in the Library of the House of Commons by my right honourable friend the Home Secretary.
  Lord Lucas: I am grateful to the Minister for that reply. We thoroughly understand each other's position. As we go through the Bill there will be an opportunity to determine whether in the end we agree with the noble and learned Lord or take the view that
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  this matter should be pursued at Report stage. At this stage, however, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 2 and 3 not moved.]
  Clause 1 [General right of access to information held by public authorities]:
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 4:
  Page 1, line 14, after ("sections") insert ("Effect of exemptions,").
  The noble and learned Lord said: This group of amendments comprises Amendments Nos. 4, 5, 7 and 9. I believe that Amendments Nos. 10 to 23 were included in this group but the noble Lord, Lord Lucas, wants them to be de-grouped.
  Lord Lucas: I am content if the noble and learned Lord chooses to cover the subject matter. At this stage I believe that Amendments Nos. 16 to 23 would be better debated singly, but it may be that the noble and learned Lord has such weighty opinions to deliver that I shall not find it necessary to move them. I do not discourage the noble and learned Lord from speaking to those amendments, but it is probable that I shall not refer to them.
  Lord Falconer of Thoroton: The noble Lord's use of the word "weighty" perhaps overstates it. However, it may be convenient if I briefly set out the Government's view on the matter. The noble Lord can then take whatever course he believes convenient.
  Lord Goodhart: I agree with the noble Lord, Lord Lucas. As Amendment No. 10 stands in our names, we are content that Amendments Nos. 10 to 15 should be taken together with the initial new clause amendment. We also prefer Amendments Nos. 16 to 23 to be taken separately.
  Lord Falconer of Thoroton: It is probably convenient if I briefly set out our position. I shall proceed on the basis that noble Lords will want to return to it, unless by mistake, as it were, we have a complete debate at this stage. The other amendments in the group are Amendments Nos. 75, 79 92, 96, 97, 270, 292, 329, 340, 343, 348 and 358.
  Lord Mackay of Ardbrecknish: The noble and learned Lord referred to Amendment No. 97 as forming part of this group. That amendment is grouped with Amendments Nos. 10 to 15.
  Lord Falconer of Thoroton: Subject to the exclusion of Amendment No. 97 and Amendments Nos. 10 to 23 being effectively de-grouped, perhaps I may deal with the group of amendments that I have just described.
  The Government have always been honest about the complexity of drafting freedom of information legislation. It involves a difficult balancing act between the citizen's right to know and the public interest in maintaining the right to confidentiality in appropriate

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  circumstances. That difficult balancing act must be translated into legislative form. However, we also accept that as the drafting of this Bill has evolved in a number of respects it has lost its way in expressing the balance of those rights with adequate clarity. I am sure everyone accepts that clarity in this area is of great importance. That is particularly true of the provisions dealing with rights of access in Clauses 1 and 13. Therefore, I should like to speak to the following amendments which simplify the parts of the Bill which deal with the right of access. However, I stress that, save in one respect to which I shall refer, they do not alter the substantive effect of the Bill as far as concerns the right of access, except for some minor changes to which I shall come later.
  The changes, which are intended simply to produce better drafting, include the omission of Clause 13(5) from the existing draft of the Bill. Clause 13(5) provides:
  "In making any decision under subsection (3) or (4) in a case where the information is exempt information by virtue of section 33(1)(a), the public authority shall, in particular, have regard to the public interest in communicating to the applicant factual information which has been used, or is intended to be used, to provide an informed background to decision-taking".
  That provision was intended to underline the public interest in the disclosure of factual information which informed the taking of policy decisions. It has been deleted by these amendments. I believe that the Liberal Democrats have tabled a subsequent amendment in which they seek to delete it as part of a package of amendments which also amend Clause 33. While we do not accept the wider amendment of Clause 33, we have concluded that Clause 13(5) has been omitted in error.
  The noble Lord, Lord Lucas, has tabled Amendment No. 14 which proposes to insert a similar provision. Therefore, although the provision is deleted from the draft that I am dealing with, when we reach Report stage we intend to insert a provision similar to that proposed in Amendment No. 14. Perhaps the Committee should read Hansard to pick up the beauty of all of that, but it is an important point to make at this stage.
  I now describe the principal amendments which restructure and simplify the provisions of the Bill. As currently drafted, the general right of access in Clause 1 is separated from the provisions of Clause 13 which give a right of access where the public interest in disclosure outweighs the public interest in maintaining the exemption. These amendments bring the rights of access together at the head of the Bill. They express more clearly the effect of the exemptions in terms of public interest disclosure by distinguishing between the provisions in Part II which confer an absolute exemption, where the need to balance the public interest in disclosure against the public interest in maintaining the exemption does not arise, and other exemptions whose application must be balanced against the public interest in disclosure. This is preferable to the current drafting where the relation between the general right of access, the duty on
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  authorities to disclose information in the public interest and the effect of the various exemptions is not clear.
  Amendment No. 9 makes certain other changes in respect of the following provisions which do not confer an absolute exemption. Those changes are as follows. I shall deal first with Clause 34. Amendment No. 9 includes the exemption in Clause 34—that relating to the effective conduct of public affairs—in the list of absolute exemptions in so far as it relates to information held by either House of Parliament. This is not a change of policy, merely of approach. The Bill as it stands already excludes the operation of Clause 13 in relation to such information—that is Clause 13(7). However, it does so by reference to the issue of a certificate under Clause 34(6). This approach we believe confuses the issue of a certificate, which is purely an evidential issue, with the substantive question of whether the public interest test should be applied.
  It is necessary to exclude the operation of the public interest test in relation to information held by Parliament and exempt by virtue of Clause 34 as, although disclosure of such information may not technically constitute a breach of parliamentary privilege, the effective conduct of Parliament is so closely connected with it that the same consideration applies. For example, something that might prejudice the conduct of parliamentary affairs but not be a breach of parliamentary privilege is advice from the Clerks of the House to the Speaker. Another example is advice from officials of the House to Members of the House. Neither of those would fall into the category of parliamentary privilege but disclosure under freedom of information could prejudice the affairs of Parliament. It is for Parliament alone to consider whether to disclose such information. That is the amendment to Clause 34.
  I now turn to Clause 38. The approach in relation to Clause 38, to the limited extent I shall now set out, is a change of policy and a response to an issue raised in another place. In the Bill as currently drafted, disclosure to a "third party" of personal information could be prevented because of the data subject's right under Section 10 of the Data Protection Act 1998 to prevent processing—which in effect means disclosure—which was likely to cause him substantial damage or substantial distress. The public authority concerned would have no need to consider the public interest in disclosure because the public interest test in Clause 13 currently does not apply in such cases. Therefore, if one had a Section 10 Notice saying that disclosure of this information would cause a particular individual substantial damage or substantial distress, that is the end of it; you do not need to disclose it. That is what the present law prescribes.
  Section 10 of the 1998 Act implements Article 14(a) of the 1995 EC Data Protection Directive. This Article requires, in certain specified circumstances, that the data subject be given the right to object at any time on compelling legitimate grounds relating to his particular situation to the processing of data relating

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  to him, except where national legislation provides otherwise. If the objection is justified, the processing may no longer involve this data.
  The Government have now reached the view that subjecting this right to the public interest test, in Clause 13 of the Bill as currently drafted, would be consistent with Article 14(a). The substitution of subsection 3(f) of the new clause in Amendment No. 9, for subsection (2)(e) of Clause 13, will mean that the disclosure to which the data subject objects under Section 10 of the 1998 Act, will nonetheless be made, where it is required in the public interest, provided that making it would not breach the data protection principles. So what one has now is that even though there is a Section 10 Notice saying that substantial distress or damage would be caused by disclosure, that does not any longer automatically mean no disclosure. The public authority has to balance that against the public interest in disclosure. So it is a step towards greater openness. Of course, the public authority's decision under the public interest test clause will be reviewable by the information commissioner. If she concludes that the information should be disclosed in the public interest, her decision is enforceable, subject to the provisions of Clause 52.
  I now turn to Clause 43. Other amendments tabled in my name remove Clause 43 from the Bill. That is the power that would have allowed further exemptions to be made by order. That clause is going. That is a source of some pleasure to certain parts of the Committee. In anticipation of these amendments, Clause 43 has here been removed from the list of absolute exemptions in the new Clause 2.
  The remainder of the Government's amendments are consequential on the restructuring of the provisions dealing with the right of access, and merely tidy up the rest of the Bill to reflect this restructuring.
  Perhaps I may briefly touch on the other amendments tabled in the names of other Members of the Committee. Amendments Nos. 16 to 23—to which I shall return shortly—will require authorities to come to a decision on public interest disclosures for all exempt information. Amendment No. 96, tabled by the noble Lord, Lord Mackay of Ardbrecknish, also seeks to remove the list of absolute exemptions from the public interest test of the Bill. However, it also goes slightly further in so far as it seeks to include information which would be exempt under Clause 11—that is, exemption where cost of compliance exceeds certain limits—within the scope of the public interest test.
  So far as concerns information exempt by virtue of Clause 11, it should be noted that nothing in the Bill actually precludes the disclosure of information by a public authority in response to a request, no matter what the cost of compliance with that request would be. Where an authority has the power to disclose information, it will have to consider disclosing this information. The Government expect such information to be released and so they have tabled a
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  new Clause—Amendment No. 90—dealing with the issue of charging for such information. Therefore, Amendment No. 96 is unnecessary to that extent.
  Amendments Nos. 16 to 23 deal with each of the absolute exemptions. Perhaps I may briefly say what the Government's case in relation to each of those is. The first of those is information under Clause 19; that is, information that is already accessible by other means. It would be a nonsense for authorities to have to provide information that would be reasonably accessible by other means. An example of that would be a request for a telephone directory. Authorities should not be obliged to have to consider whether to send an applicant a copy of a telephone directory. Clearly, the applicant can look at his own or approach British Telecom for one.
  Alternatively, the authority may be obliged to provide the information under another regime. An illustration of that is the Local Government Act 1972. That Act requires local authorities to make certain information available, and so there is no need for the authority to consider disclosure under freedom of information. It is important to note that, under Clause 19, if the information is not reasonably accessible to the applicant, then the applicant may apply for it under FOI. Freedom of information will therefore operate as a "top up" to the other free-standing access regimes. The information commissioner will have the power to determine whether the information is in fact reasonably accessible to the applicant or not.
  I turn now to Clause 13; that is, whether information supplied by or relating to bodies dealing with security matters should be an absolute exemption. As a matter of policy, the Government are committed to ensuring that the work of such bodies is not hampered by FOI. The Bill, therefore, excludes the bodies themselves. Moreover, because of the extremely sensitive nature of this information, disclosure of information related to the work of the bodies will also always be against the public interest. Therefore, if the information requested falls into this class, there should be no further need to consider whether or not to disclose it.
  Court records are also excluded from what was Clause 13. Subject to the views of the Committee, that will be Clause 2. This is because the normal rules should apply to the release of court records, and when an applicant requires disclosure of information contained in them, it is for the courts to determine what should be made available.
  For that reason, once an authority has established that the information falls into that class there is no reason for the authority to consider further whether or not to release it in the public interest. That is a matter for the courts to decide.
  The next area where Clause 13, now Clause 2, does not apply concerns parliamentary privilege. This is for Parliament to decide, not public officials. Personal information is covered by Clause 38(1) and individuals have a right of access to information about them under the Data Protection Act. That Act sets out exhaustively the right to such information. There is no

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  need to come to a further decision on the public interest in the disclosure of such information. Personal information about a third party is also outside the scope of the duty if its disclosure would contravene the data protection principles. Disclosure contrary to those principles would be contrary to EU law and the European convention and thus there is no room for a public interest test.
  We also exclude from the new Clause 2 information supplied in confidence. The common law duty of confidence contains a public interest test, so that if the public interest requires that certain information should be disclosed a duty of confidence cannot attach to that information. In such a case the information would not be exempt and the information would be disclosable under Clause 1. There is therefore no need to apply the further public interest test. If a duty of confidence does arise it should not be put in doubt by the application of a further public interest test under what will become Clause 2.
  Turning to Clause 42 and prohibitions on disclosure, where as a matter of law the authority may not disclose the information in question the Bill does not require its disclosure. The public interest in disclosing the information will already have been taken into account in establishing the prohibition, often by Parlament itself, and there is therefore no need for authorities to consider the question under FoI. However, the Government recognise that some statutary bars to the release of information have outlived their usefulness and therefore Clause 74 of the Bill provides a power to enable such bars to be amended or repealed to allow the information to be disclosed. A review of the 400 or so bars is currently ongoing, and the Government will in due course announce possible candidates for amendment or repeal.
  I have already dealt with Clause 43(2), removing the power to increase exemptions. Amendment No. 20 seeks to remove Clause 34 to the extent that it refers to information held by the House of Commons or the House of Lords from the list of absolute exemptions. This is in response to the government amendment introducing Clause 34, to the extent that I mentioned, to the list of absolute exemptions. I have already set out why that aspect of the government amendment is necessary. I have gone very briefly through the reasons why each one is an absolute exemption. That touches on Amendments Nos. 16 to 23 and it is entirely in the hands of noble Lords who wish to put amendments as to whether to deal with them now or later.
  Amendments Nos. 10 and 12 I will deal with when they have been raised. The same applies to Amendments Nos. 11 and 13 to 15. I think that is all I can usefully deal with at this stage. I beg to move.
  4.45 p.m.
  Lord Goodhart: I wish to speak to Amendments Nos. 10 and 12 as amendments to Amendment No. 9, moved by the noble and learned Lord. First, I should like to say that we welcome aspects of the new clause. We think that the new way in which the interface
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  between freedon of information and data protection is to be handled is a significant improvement. There is one aspect, though, of the new clause as a replacement for Clause 13 which we believe to be an improvement but which the noble and learned Lord did not discuss. That is the question of the interaction between this new clause and Clause 49, which is the clause under which the information commissioner has power to make decisions.
  Under Clause 13(3) and (4), it was for the public authority to decide whether in all the circumstances of the case information should or should not be disclosed or whether there should be confirmation or denial of its being withheld. Clause 13 (3) says:
  "Where the duty to confirm or deny does not arise but it appears to the public authority that, in all the circumstances of the case,"
  and so on. It appeared to us, arguably, that the effect of those words was that in Clause 49 the role of the information commissioner would be purely one of judicial review; that is, of deciding whether there were effects on the basis of which a reasonable public authority could have come to that decision. As we understand it—and I should like to hear from the noble and learned Lord whether this is a correct conclusion—the new wording does not refer to the opinion of the public authority. It simply says that the question is whether, in all the circumstances of the case, the public interest in disclosing outweighs the public interest in maintaining the exclusion.
  On that basis, it is our understanding that the test is an objective one and if the information commissioner comes to the conclusion on an application under Clause 49 that she would herself have come to a different conclusion, then she is entitled to substitute her own conclusion for that of the public authority, even if it could not be said that the decision of the public authority was irrational.
  That seems to me a very important point because the public authority is obviously an interested party. It cannot be regarded as an independent or impartial tribunal. It is taking a decision which is subject to review by the information commissioner, and it is obviously correct that the information commissioner must, as the first independent reviewer of the position, be entitled to substitute her own decision for that of the public authority. That certainly is something that we regard as a major bonus of the new clause but in view of the fact that the noble and learned Lord did not mention it in his speech it concerns us whether that is in fact the intention of the Government. We would hope to be comforted in that respect by hearing that it was the intention.
  Lord Falconer of Thoroton: Perhaps it would be as well if I reply to that point now. There is good news and bad news in this respect. I think the noble Lord, Lord Goodhart poses the question whether the removal of the words "it appears to the public authority" means that the commissioner now has wider powers under Clause 49: that is, she can substitute her own view rather than being inhibited by something similar to a judicial review-type test. I think that that is the question. We say that it does not change

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  the existing position. We say that the position has always been that the commissioner could substitute her own view for that of the authority. So the bad news has been replaced by the good news at the end, and the removal of the words we believe have made the position clearer. That is why I did not mention it as a change, because it was referring to a position that already existed. I am sure that that will satisfy the noble Lord.
  Lord Goodhart: The bad news has clearly been trumped by the good news. For that reason, I am happy with the assurance given by the noble and learned Lord.
  I shall turn now to Amendments Nos. 10 and 12. As the noble and learned Lord, Lord Archer of Sandwell, pointed out in his contribution, Clause 1(1) states that anyone who requests information is entitled to receive it. That seems to us to be the proper and correct principle on which the Bill should be based. Of course we recognise that that principle cannot be unconditional. No freedom of information legislation anywhere in the world is completely unconditional, but the principle that the information held by an authority should be made available is most important. The new clause plainly contravenes this principle, as indeed did the original Clause 13. Under subsection (1)(b) of the new clause, the duty to confirm or deny applies only if,
  "in all the circumstances of the case, the public interest in disclosing whether the authority holds the information outweighs the public interest in maintaining the exclusion of the duty to confirm or deny".
  Similarly, under subsection (2)(b), the duty to disclose applies only if,
  "in all the circumstances of the case, the public interest in disclosing the information outweighs the public interest in maintaining the exemption".
  It is of course true that these provisions apply only to information exempted under the provisions of Part II and not to other information. However, that part of the Bill contains an extremely long list of exemptions. It includes no less than 24 clauses, each of which specifies a different type of exempted information. Indeed, eight of the 24 clauses provide exemptions even from disclosure under the proposed new clause. We shall need to look at those eight cases in more detail when we come to later amendments.
  However, subsections (1)(b) and (2)(b) of the new clause are plainly inconsistent with the principle because they turn the wrong way round the burden of proof. It is possible to secure confirmation that information is being held, and subsequent disclosure of that information, only if the public interest in disclosing such information outweighs the public interest in maintaining the exclusion. Surely the principle to apply here should be that information must be disclosed unless the desirability of so doing is outweighed by the public interest in maintaining the exemption. If the balance is equal, disclosure should take place.
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  It is fair to say that I doubt whether, in practice, this will make an enormous difference. In most cases, it will be possible for whomever is adjudicating to come to a decision on whether one interest does in fact outweigh the other. But the fact that the statute calls for maintaining the exemption in cases of equality sends absolutely the wrong signal. The trumpet call for freedom of information in Clause 1 is muffled and muted by the inconsistent rule which has been proposed for inclusion in the new clause.
  Lord Lucas: I believe that my Amendments Nos. 11 and 13 address much the same points just covered by the noble Lord, Lord Goodhart, although they do so rather less well. Under those circumstances, I prefer his amendments. However, my argument is exactly the same: when a close balance needs to be struck between disclosing information and not disclosing information, the disclosure of information should win. I agree very much with the noble Lord, Lord Goodhart, on this point. Whatever may be the legal implications of what has been proposed, the implication in plain English suggests that one will have to prove that information ought to be disclosed and that the balance must fall clearly in one's favour before such disclosure is to be allowed.
  I accept that that may not be exactly how it could be interpreted legally but that is how it reads to me and clearly to the noble Lord, Lord Goodhart. I believe that the noble Lord's suggestion that the phrase should be turned around would—if it would make no legal difference—greatly improve its accessibility in terms of plain English. A great many people who will care deeply about the provisions in the Bill will wish to read them in plain English rather than in "legalese".
  I am delighted that Amendment No. 14 may have some effect here. I shall be happy to wait to see what that is to be and I shall reserve my reaction until the appropriate time. As regards Amendment No. 15, I shall be much comforted to be told that that is to be dealt with in some other way. It is a difficult matter to address at this point in the Bill. However, it is clear that instructions to public authorities in some form must be included as regards how they are to deal with decisions to be reached under the provisions of the new clause in Amendment No. 9. We address that point elsewhere by suggesting in another amendment that the information commissioner should be given a role in instructing public authorities on how they should reach such decisions. Whether that is to be the case, it is clear that instructions in some form are needed here. I shall be content if I am told that the noble and learned Lord agrees with me that, where a matter is no longer under active consideration, in principle that should be construed as evidence in favour of it being disclosed.
  The noble and learned Lord has given me food for thought as regards Amendments Nos. 16 to 23. I believe that it will be easier to deal with them separately and individually. In the light of what the noble and learned Lord has already stated, I may no longer bother to move some of them; indeed, to

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  address them now would merely complicate matters. They will each require individual and practical attention.
  Perhaps I may turn now to Amendment No. 79, tabled by the noble and learned Lord. I do not intend to address this in detail today, but I am distressed to see that the noble and learned Lord has not taken the opportunity to examine the matter of time limits. It seems to me that we have a lacuna in the proper operation of the Bill, in that in circumstances where a public interest test arises no time limit will be imposed on a public authority's deliberations. It could take three or even six months to consider the matter. As long as it is actively considering an issue under that heading, it entirely escapes the time limits imposed by the Bill—or at least that is how I read it. It may be that I have it wrong. If that is the case, I shall be happy to be corrected. Otherwise, the provisions of Amendment No. 79 will need to be revisited when we consider the Bill on Report.
  Lord Lester of Herne Hill: In considering the extremely helpful new clause set out in Amendment No. 9 and questions such as the burden of proof, it would be most useful if the noble and learned Lord could indicate how he considers the phrase,
  "the information outweighs the public interest",
  is to be addressed. I take it from his earlier speeches that he would agree that the starting point is the right of the public to have access to information, subject to certain necessary exceptions. I take it also that he would agree that those exceptions should be necessary in the sense that they should apply only where the principle of proportionality operates. Thus the starting point would be access to information. We then come to exceptions, where they are necessary, with the application of the principle of proportionality.
  This might be covered by the phrase, "the information outweighs the public interest in disclosure" and "outweighs the public interest in exclusion". However, this is the first example we have reached which demonstrates the absence of a legal standard or criterion. It would therefore be helpful if the Minister could indicate the Government's position here.
  In some recent cases, in particular in R v. Secretary of State for the Home Department, ex parte Simms, which concerned restrictions on access to the media by a prisoner, and another, Reynolds v. Times Newspapers, which concerned how to balance reputation against free speech, the Law Lords indicated that the starting point always should be free speech, subject to any necessary exceptions. However, it would be undesirable if we needed to establish through litigation what ought to be plain and obvious. Either this should be dealt with by making the situation plain on the face of the Bill or at the very least by a Pepper v. Hart statement from the Minister—even though I do not particularly favour that.
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  Either now or at a later point in the passage of the Bill, will the Minister also address the issues of the legal test and burden of proof and how he sees these points being worked out in practice?
  Lord Archer of Sandwell: Some noble Lords were somewhat starved of sleep last night. I do not think that I am firing on quite as many cylinders as has sometimes been known. For that reason, I hope that my noble and learned friend will forgive me if I read carefully what he said when introducing the new clause. Meanwhile, silence does not necessarily imply assent.
  Perhaps my noble and learned friend can assist me with one matter. We now have an expression in the Bill which, if I am not mistaken, was not there before—that is, "absolute exemptions". I take it that the expression is intended to distinguish those exemptions from exemptions which are subject to either a harm test or a public interest test. However, I wonder whether they have any other significance—whether they are intended to have some other meaning or whether it is simply an attempt to add emphasis, like heavy breathing. Perhaps my noble and learned friend could elucidate on that when he replies.
  5 p.m.
  Lord Brennan: Before the Minister replies, perhaps I may invite him to deal with the practical application of subsection (1)(b) so far as concerns government employees and the public. The Committee has just listened to a classic example of the fear I expressed not more than half an hour ago that when you set lawyers onto this Bill they will have a field day. We have had one on this subsection, but that is not a proper state of affairs.
  I anticipate a problem that, if the Bill becomes law in these terms, government civil servants will develop a frame of mind in which they think information can be withheld unless the applicant can convince the commissioner that the public interest outweighs the government interest. Much more importantly, the ordinary citizen who makes an application and is put in contact with the information commissioner will want to know the substance of that upon which he is about to embark. Will he be told, "It is for you to show the commissioner that your interests and those of the public outweigh the interests of the Government"? Or will he be told, "You cannot obtain disclosure unless you can convince the commissioner it is in the public interest"? That is an extremely important practical application of the Bill. It would be most unfortunate if the Bill came into legislative force without some practical direction being given to it in the way I have indicated.
  Lord Mackay of Ardbrecknish: During the previous debate, the noble Lord, Lord Dubs—who is unfortunately not in his place and cannot accept my challenge—said that he wanted to know what he could say to his taxi driver tonight when explaining what the Bill was about. I would happily pay the noble Lord's taxi fare home if I could hear him explain this Bill to the taxi driver in a way that he could understand it.

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  I am also reminded that when we were in government I had two namesakes—my noble and learned friends Lord Mackay of Clashfern and Lord Mackay of Drumadoon. I occasionally went to speaking engagements where it was perfectly clear to me that a good proportion of the audience had come along thinking that they were going to hear one or other of those learned gentlemen. I always said that I was sorry to disappoint them, but they knew that I came cheaper.
  I hesitate to intervene in this debate between noble and learned Lords, whether they are technically learned in the phraseology of the House of Lords or learned because they are senior lawyers. I hope that not too many members of the public need to rely on the previous 39 minutes to work out whether or not they have rights under the Bill.
  I have tabled Amendment No. 96, which covers, in a different way, the same ground as that covered by the amendments of the noble Lords, Lord Goodhart and Lord Lester, and of my noble friend Lord Lucas. They cover the whole question of the public interest test and the exemptions to it.
  Moving the provisions of Clause 13 to the beginning of the Bill is a step in the right direction. It creates one point of access to the Bill instead of two. However, if I have understood much of the debate, the real point is that the Government have retained the provisions which exempt certain kinds of information from a public interest test as to whether or not it should be released.
  We believe that, if we are going to have a freedom of information Act, as much information as possible should be released. It is right that a public interest test should be applied as to whether certain exempt kinds of information should be released. Amendment No. 96 takes us through the various sections originally contained in Clause 13 but which are now contained in government Amendment No. 9.
  It is worth reminding the Committee of the absolute exemptions contained in the amendment. They will constitute a problem for an ordinary person, who will have to weave his way through the Bill to discover them. If ever a Bill needed to be written in plain English, it is this one—especially if it is to be used by plain people, like myself, who wish to understand the Bill and to obtain information from government departments without having to pay fees.
  The first exemption is information which is accessible to the applicant by other means. One does not have to have worked very long in government with civil servants to know that that exemption could certainly be used to shut a good few doors once the clever people got at it. The next exemption concerns information relating to the work of bodies dealing with security. I understand the reason for that, although again that could cover a multitude of sins. Other exemptions include court records supplied to public authorities; information supplied subject to parliamentary privilege; and personal data—an extraordinarily complicated area that we shall go into
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  later, in which we could find two well-meaning principles conflicting with each other. Further exemptions include information the disclosure of which would constitute an actionable breach of confidence; and information the disclosure of which is prohibited by statute, is incompatible with a Community obligation—I would not have thought that any information could be kept secret because it is inconsistent with a Community obligation, but never mind—and would involve contempt of court. Even I understand that one.
  In addition, I have suggested—the noble and learned Lord has addressed this matter—that the public interest test relating to costs exceeding appropriate limits should be questioned. Government Amendment No. 90 may make that aspect of Amendment No. 96 unnecessary.
  It seems to me that we should not exempt broad classes of information without a public interest test. I suspect that many people inside government will find Clause 13—which has now been moved to the beginning of the Bill by the noble and learned Lord—a mine where they can find excuses and reasons for not disclosing information. The people who have a close interest in this issue and have looked at it from a legal point of view are signalling the same kind of concern.
  Once we see the new print of the Bill, with the noble and learned Lord's amendments in place and after we have had an opportunity to study what he said, we may well have a clear view of the Government's position. We may or may not like that and we may have to return to the issue. However, for the moment, I wish to lay Amendment No. 96 before the Committee as a suggestion for perhaps improving public access to information held by governments in the same way as other noble Lords who have spoken.
  Lord Falconer of Thoroton: I agree entirely with the noble Lord, Lord Mackay of Ardbrecknish, that the Bill should be as clear as possible. We have sought to make it as clear as possible. I should emphasise that if noble Lords come forward with amendments designed to increase the clarity of the Bill, we shall certainly consider them. It is a difficult process to make the Bill as clear as possible because it is a Bill which will be used by citizens in exercising their rights to freedom of information.
  Turning to the main points raised by Members of the Committee, the noble and learned Lord, Lord Archer of Sandwell, asked what is meant by an "absolute exemption". An "absolute exemption" means an exemption contained in new Clause 2(3)—that is, an exemption to which the public interest provisions do not apply. It has no meaning beyond that. It is simply a means of identifying which exemptions do not have the public interest test applied to them once it is established that the information is within the exemption.
  In their separate amendments the noble Lords, Lord Mackay of Ardbrecknish and Lord Lucas, seek to remove all of those exemptions. In relation to the remarks of the noble Lord, Lord Mackay, in support

  913
  of that aspect of the amendments, he began to indicate that there were some such as the security services that he might accept should be included. He did not seem to indicate that parliamentary privilege should be an absolute exemption. I am not sure what he was saying in relation to court records. Our point is that if it is a court record, surely the court should decide, not a public official.
  In relation to personal information, the noble Lord said that the issue is very complicated. Indeed, it is. We are saying that there is a legal code dealing with personal information that has been enacted into law. We should stick with that. In relation to information supplied in confidence, that is not covered by a public interest disclosure test because material in confidence can be held back only if it can be established that the confidentiality outweighs the public interest in the first place—so one is effectively repeating the test that one has already applied to get the exemption in the first place.
  Lord Lester of Herne Hill: I am grateful to the noble and learned Lord for giving way. Like the noble and learned Lord, Lord Archer of Sandwell, I do not have a wide-awake Renaissance mind about these matters. I should like the noble and learned Lord to clarify one point. Am I right in thinking that the new clause will not have an impact on Clause 33, dealing with information from private offices, government and so on, that there will be not an absolute exemption but that something will be brought back later in place of Clause 13(5) that will involve a balancing test? Is that the scheme being contemplated?
  Lord Falconer of Thoroton: Yes. Clause 33 is not an absolute exemption clause. It means that, in regard to any information that is exempt because it relates to policy, the public authority has then to consider in relation to all of the information covered by Clause 33 whether the public interest favours disclosure. In considering that, it must have regard to the fact that there is a public interest in disclosing factual matter which forms the background of a policy decision. That is the structure.
  The only other area raised by the noble Lord, Lord Mackay of Ardbrecknish, concerned information that is reasonably accessible by other means. That matter can be tested by the information commissioner.
  5.15 p.m.
  Lord Archer of Sandwell: Before my noble and learned friend proceeds, I should be grateful if he could resolve something that is puzzling me. Why is it so important to ensure that information which is already available by other means does not emerge, whatever other tests may be applied to it?
  Lord Falconer of Thoroton: If the matter is reasonably accessible by other means—that issue is justiciable before the information commissioner without any possibility of ministerial override—it would not seem sensible to make it also susceptible to the public interest test. The information commissioner
  914
  will have decided that the information can be obtained somewhere else. That is the factual issue which should determine whether one gets it through the freedom of information regime. That seemed to be the only area that the noble Lord, Lord Mackay of Ardbrecknish, pursued with any degree of vigour.
  I have already explained why we say that there should be these absolute exemptions. They have been carefully thought out and they seem to us to be sensible.
  Perhaps I may turn to the raft of amendments which address the—I think the term was used loosely—burden of proof point in relation to the exercise of the public interest test in what will become Clause 2. The amendments of the noble Lord, Lord Goodhart, would reverse the balance of the public interest test in respect of the exemption from the duty to confirm or deny. Instead of requiring that the public interest in disclosure must outweigh the public interest in maintaining the exemption, the amendments would require the public interest in maintaining the exemption to outweigh the public interest in disclosure.
  How does it work in practice? I do not think that it is a burden of proof issue. This is not about fact and whether a case is made out. It is for the public authority to consider what weighs in the balance in favour of disclosure and what weighs in the balance in favour of maintaining the exemption. Whichever is the higher prevails in relation to whether there is disclosure. The courts have repeatedly said that that is not a burden of proof case. The public authority cannot say, "It's not proved where the balance lies". The public authority has to address the issue and come to a conclusion in relation to it.
  The noble Lord's amendment would make a difference in a case where the balances were equal. In that case the position would be that the information would not be disclosed because of the way the provision is drafted. We believe that that is very unlikely to happen. The public interest is not susceptible to being weighed in such a way that it would lead to that. There will be an answer one way or another. The point I have identified is the one made by the noble Lord, Lord Lucas, in relation to his amendments. I recognise that there is strong feeling about this issue. I suspect that that feeling is not about what I think would be a very unusual case where the balance was very fine. I suspect that it is more about what message would be sent to authorities and to the public about creating a presumption of openness. That informed both the noble Lord, Lord Lucas, and the noble Lord, Lord Goodhart.
  I hope that the remarks I made at the outset of the Committee stage have indicated where the Government stand in relation to these issues. However, in the light of the strong feeling that has been expressed, and without giving any assurances, I shall consider the arguments put forward and we shall reflect on what their effect may be.
  Lord Lester of Herne Hill: I shall try not to make a habit of intervening unless I think it is really necessary

  915
  to do so. I am grateful to the noble and learned Lord for what he has just said. In reconsidering the matter, will he look at the case law? In cases such as Spy Catcher and some of the other cases it would not be right to have an even-balancing in the scales in the way the noble and learned Lord has described. There should be a right of free expression subject to necessary exemptions. That has been clear going right back to the Thalidomide case in the European Court of Human Rights. Will he consider those cases? We are concerned to ensure that it is a question of exceptions to a positive right to free speech and access to information. I should be grateful if the noble and learned Lord would consider that point when he considers the debate.
  Lord Falconer of Thoroton: We will look at the relevant cases, but I am trying to explain the effect of the existing legislation, which is plainly a different matter from, for example, the exercise of a judicial discretion in the Spy Catcher case, which concerns a different kind of legal framework.
  The noble Lord, Lord Lucas, fairly said that he preferred the amendments of the noble Lord, Lord Goodhart, to his own amendments in this case. With respect to him, I shall not spend too much time on his amendments save to say that his amendments envisage there being a balance in favour of non-disclosure in certain circumstances. Yet because it is not a substantial balance in favour of non-disclosure, there would nevertheless be disclosure even though, whatever test one applied, the public interest was against it. That seems to us not to be a sensible conclusion to reach.
  The noble Lord is absolutely right about Amendment No. 14. I have already indicated that we may well come back to that, or something like it, in order to restore what was previously Clause 13(5) of the Bill. I think that I have dealt with all the amendments in the group.
  Lord Mackay of Ardbrecknish: Perhaps I may raise one final point. I do so with some reticence given the number of people who are involved in this debate who must read through all these complicated clauses and amendments.
  Perhaps I may explore the term "personal data" referred to in Clause 38, where the position is absolute. I understand that "personal data" may be, for example, my records of payments to the Inland Revenue. To be honest, the only thing that would embarrass me would be people knowing how little I have to pay to the Inland Revenue. Nevertheless, payments to the Inland Revenue ought to be fairly private and confidential, as should other matters of that nature.
  But papers circulating inside government always have names at the beginning and end. The end usually tells me which official a paper is from, and the beginning usually tells me to whom it has been copied. I recall an awkward experience that I once had with some documents on policy matters—which would
  916
  rightly be covered by this Bill—when they were leaked to the then Opposition, who did not seem to be too bothered about using them; indeed, they used them with alacrity. While I was not happy that policy papers were being leaked, what annoyed me above all was that the name of an official of the department who had written the document came into the public domain and he took a bit of a hammering from interest groups who were not pleased about what would be the effect of the policy.
  Would a paper about statistics or whatever, which in all other ways would be available to the public, possibly some years after the policy had been decided, be covered by the term "personal data" because of the name at the end? Or would the name simply be blanked out? Would the names of the people to whom it was copied come under the heading "personal data"? Sometimes, the name of the person to whom a document is copied is a most important piece of information. People say, "I did not know anything about this". Yet the document states that it was copied to them: so either they knew about it and had forgotten; or, if they knew, they were not going to let on; or else they did not bother to open their Red Boxes that day. I wonder whether that will be considered personal information under Clause 38. Frankly, if it is, very few government papers will ever see the light of day. I do not know whether this is the appropriate point for the Minister to reply to this question; however, I hope that I have posed it clearly and I look forward to his reply.
  Lord Falconer of Thoroton: I think the question is: are references to people who receive and send documents—the noble Lord refers by way of example to officials, but this could equally apply to Ministers—covered by the expression, "personal data"? In principle, they could be personal data, but the question then becomes: would the data protection principles apply to prevent disclosure? If they did not prevent disclosure, then they could be disclosed. If they did prevent disclosure, it would still be possible to delete the name of the individual concerned and make disclosure of the rest of the document.
  I apologise for not dealing with Amendment No. 15 tabled by the noble Lord, Lord Lucas. In effect, it examines whether or not the fact that a matter is closed should be a relevant consideration in regard to whether or not the public interest required disclosure or whether it is under active consideration. I can quite understand why the noble Lord should have selected the currency of information as a relevant factor; but it will be only one factor among many. Public authorities will inevitably have regard to a wide range of factors when deciding on the balance between the public interest in disclosure and the public interest in maintaining an exemption. Whether or not a matter is under active consideration by that authority will be one of those factors. But the legislation requires public authorities to consider applications on their own merits, including all of the prevailing circumstances of the case, when determining that balance and when deciding whether or not it is right to disclose the

  917
  information. We believe that it would be wrong to highlight one specific factor to which the authority must have particular regard, as this may give the impression that there is an overriding factor in the process when clearly that cannot be the case.
  Lord Lucas: The noble and learned Lord did not cover my comments on Amendment No. 79 and on the lack of a time limit. That seems to provide for a public interest consideration to take place. I should be grateful for a reply on that point.
  It also occurs to me in the light of other remarks by the noble and learned Lord that when he is considering the redrafting of the old Clause 13(5), it appears that we need some understanding of what the Government mean by "factual". On many occasions facts are processed. A statistician will collect a great many facts and will then produce some form of statistical paper containing conclusions, graphs and summations. Am I to understand that that kind of processing of facts to produce something that is arguably still fact, but is arguably opinion, is covered under the general heading "factual", or is all that is covered the raw material?
  Lord Falconer of Thoroton: The position regarding the time limit is that there must be consideration of whether it is within an exemption of 20 days. So far as concerns the public interest decision under what will become Clause 2, that decision must be made "within a reasonable time". That comes from Amendment No. 105 dealing with Clause 15. We think it right that there should be a different approach to the two, because the public interest factor may take longer than that of the exemption, but there is still an obligation to do it within a reasonable time, which will depend on the circumstances of the case.
  As regards the term "factual", we shall deal with it in some detail when we debate Clause 33 and the policy decisions issue. What is "factual" and what is opinion is difficult to define. But there is a line to be drawn somewhere, and it is a matter of judgment in each case. Perhaps we can return to the issue when we debate Clause 33, where it arises four-square. I commend the amendment to the Committee.
  On Question, amendment agreed to.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 5:
  Page 1, line 21, leave out subsections (4) and (5).
  On Question, amendment agreed to.
  Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 6:
  Page 2, leave out lines 9 to 12.
  The noble Lord said: This amendment stands also in the name of my noble friend Lord Goodhart. It would delete the last four lines of Clause 1(6), which allows authorities to amend or delete information in a requested document if they intend to make the amendment or deletion before receiving the request.
  The provision as it stands reflects Section 8(6) of the Data Protection Act 1998, which in turn is taken from the Data Protection Act 1984 and is presumably
  918
  intended to allow for automatic updating of computerised files (for example, bank statements). While that is suitable and makes sense in the area of data protection, the provision could have a serious negative effect on public access to information.
  Our proposed new clause which follows Clause 1 on the protection of records relates also to this matter. I refer to Amendment No. 24, which is grouped with this amendment. It may be convenient if I speak to that at the same time.
  Amendment No. 24 seeks to insert a new clause into the Bill requiring authorities to take all reasonable steps to prevent the destruction or alteration of a record which may contain requested information until the request has been finally determined.
  The Bill already provides that deliberate destruction to prevent disclosure would be an offence under Clause 75(1). This amendment requires authorities to ensure that a record is not accidentally destroyed while a request may be active—for example, by allowing it to be "weeded" as part of the routine process of destroying old records which are not selected for permanent preservation in the Public Record Office.
  That is not a fanciful concern. Only the other day I received a letter from a distinguished academic complaining that apparently the Home Office had accidentally destroyed a great many records relating to decisions relating to the European Convention on Human Rights, joining it and so on. He was complaining that he had been to the Public Record Office and could not obtain them. One need not go into that particular case. In the best of administrations that may happen. But there needs to he something other than a "bad faith" guarantee to stop it happening. I beg to move.
  5.30 p.m.
  Lord Lucas: I have a small amendment in this group, Amendment No. 8, which I believe would probably be better dealt with by some form of guidance rather than being included on the face of the Bill. When dealing with public authorities over the years, it has been my experience that you are asked why you want to know the information and, on occasion when you refuse to say why, the information is not forthcoming. That is not a desirable practice. I do not believe that there is, or should be, any right under this legislation for the public authority to know why someone wants the information. It is sufficient that the person has made a request.
  However, it is frequently pointed out that it may actually be helpful for an authority to ask someone why he wants such information because in that way those concerned may be able better to choose what information he may require or, indeed, provide such information in a form that is more appropriate to his particular requirements. I cannot see any way of drafting a clause in the Bill that would cover those two opposing sides. But it is important that public authorities should be told quite clearly that they do not

  919
  have the right to ask that question and that the provision of information is not dependent upon the use that anyone wishes to make of it.
  Lord Clinton-Davis: I support in principle the points set out in Amendment No. 24. It is too easy for a public authority to say that the documents have been destroyed. I do not know whether that can be dealt with by way of instruction to public authorities rather than by way of the suggested new clause.
  I may be wrong, but it seems to me that an indication by my noble and learned friend Lord Falconer about the policy of the public authorities in this respect would be appropriate on this occasion. However, I do not know whether the noble Lord, Lord Lester, will go as far as amending the Bill's provisions. It is very important that the protection of records is at least dealt with in the way that I have suggested.
  Lord Williamson of Horton: I rise to comment on Amendment No. 8, tabled in the name of the noble Lord, Lord Lucas. I agree that it would probably be better to deal with it through guidance. The reason I intervene now is that I had responsibility for running a scheme in the European Commission under which officials could not require the applicant to justify his request—that is to say, the same objective sought by the noble Lord, Lord Lucas. None the less, there was a temptation on the part of officials from time to time to think it very reasonable to ask the applicant to justify such a request. That was particularly true where there were forthcoming legal cases for jurisdiction of one kind or another. It is important for us to stick with the principle set out in Amendment No. 8; namely, that, in one way or another, we should insist on this point. I do not insist on it being included in the Bill, but it is an important point because people will try to bypass the arrangement unless it is set out very clearly.
  Lord Norton of Louth: Perhaps I may add my support to the principle enunciated by my noble friend Lord Lucas and suggest a way that it might be approached. I should link Amendment No. 8 with Amendment No. 29, tabled in the name of my noble friend Lord Mackay which imposes a duty on a authority to be helpful to the applicant. It is possible that the words of my noble friend Lord Mackay should appear on the face of the Bill, but there could also be a provision in the code of practice to meet the point raised by my noble friend Lord Lucas. If there is an imposition on the authority to be helpful, this could involve asking for what purpose the information is intended. However, there should also be an indication of some prohibition in terms of intrusion or as regards officials seeming to be unhelpful in some way to the applicant. That may be a way of dealing with my noble friend's extremely important point.
  Lord Mackay of Ardbrecknish: As my noble friend Lord Norton said, some of the points mentioned in the amendment of my noble friend Lord Lucas will be addressed in my later amendments. My noble friend
  920
  has rightly explored the real point: officials must not be able to require someone to say why he wants the information. If the person requesting the information does not say why he wants it, officials should certainly not be able to refuse it.
  However, I can understand that there may be circumstances where the official is asking why the person wants the information in order to help the person find the exact information required; for example, the person may not have phrased the request properly. This is a difficult issue. We must ensure that both points are dealt with either in the Bill or in guidance. I shall probably have more to say on the matter when we deal with a later amendment relating to authorities assisting applicants.
  I turn now to the amendments put forward by the noble Lord, Lord Lester. I am somewhat puzzled. Someone may ask for information that is a little old; indeed, it may well be out of date and have been superseded. However, the important point is that at the time that that information was used the new information was not available. I am in some doubt as to whether one should, so to speak, "doctor" a record. It may be reasonable to put an addendum on it, but events move on in many fields, new information becomes available and new discoveries are made—that is certainly so in the health field.
  The information on which a decision was taken some years before may turn out to have been inadequate but it may not have been inadequate at the time. Therefore, it would be wrong for people to update information. It might look as if the officials or Ministers who took the original decision did not read the information given to them. I hope that I am making myself clear. The noble and learned Lord indicates that I am not. I invite him to be in my shoes, especially during his explanation of the last group of amendments. I am just getting my own back.
  Certain officials may have had to make a decision about an issue and would have done so on the best scientific and medical advice available. However, in two or three years' time that may have been overtaken by other information which, if it had been available at the time, might have caused those officials to take a different decision. If someone is trying to look at decisions taken two or three years previously, he should only be provided with the information that was available at that time. He should not have "hindsight", which, as noble Lords know, is the best kind of vision to have.
  I shall not mention the vision of hindsight that the noble and learned Lord might like to have about a certain project in which he is involved, but I can certainly bring to mind one or two issues with which I was involved when I was health Minster at the Scottish Office more than a decade ago. Those decisions were taken on the best possible information available at the time. With the passage of time, and with medical advances, that information was not wholly accurate. However, it would be quite wrong if someone could point the finger today at the officials—and, needless to say, the Ministers—and say that they made the wrong

  921
  decision. Indeed, they might have made a different one if all the information had been available; but it was not. That is why I am sympathetic to the noble Lord's amendment. We should not be in the business of updating—that is to say, changing records—years after they were created.
  Lord Falconer of Thoroton: The intention of the amendment of the noble Lord, Lord Lucas, is that one's motive in making the application should be irrelevant to the issue of whether or not one gets the information. Officials dealing with the application should not be able to seek to determine the motive because the question of whether one agrees with it is irrelevant. The Government agree entirely with that approach. They do not believe that an amendment is required to make it clear.
  The way the Bill operates is that once one establishes a right under Clause 1—unless it is in an exemption and one is not entitled to it—and what is presently Clause 13 one is entitled as of right to that information. I do not think that we need to put that on the face of the Bill. I hope that saying that here makes it clear that the Bill is intended to be applicant blind.
  I should take up and endorse the point made by the noble Lord, Lord Mackay of Ardbrecknish. It is perfectly legitimate for the official to have a discussion with the applicant with a view to helping the applicant refine the request he or she is making so as to use better the provisions of the Bill. That is only for the purpose of assistance, not for examining motive with a view to determining whether to proceed with the request because that is quite irrelevant in the context of the Bill as drafted.
  Lord Lucas: That is a very satisfactory answer but I would be grateful for guidance as to what happens if there is a public interest test involved. If an official has to decide if there is a public interest in disclosure, presumably there is a strong temptation to inquire into what use is going to be made of the information because that is what he would like to use to establish the public interest in disclosure. I would be grateful to know how that conflict is resolved.
  Lord Falconer of Thoroton: As far as public interest between disclosure on the one hand and the maintenance of exemption on the other is concerned, it has to be looked at objectively. One looks at the impact of disclosure, that is, making it public. What is the impact of the exemption being maintained? That should be looked at objectively rather than in terms of whatever the motive may be of the person applying. That does not mean that the motive of the person applying may not coincide with factors that could be relevant to what damage may be done and what assistance could be served by making the matter public. But individual motives will not be relevant to that.
  I turn to Amendments Nos. 6 and 24 proposed by the noble Lords, Lord Lester of Herne Hill and Lord Goodhart. Amendment No. 6 removes from Clause 1(6) the provision that although the information that
  922
  should be communicated is the information held at the time when the request is made, the authority may take account of any amendment or deletion made between that time and the time the information is to be communicated. The amendments or deletions may only be those that would have been made regardless of the receipt of the request. Amendment No. 24, tabled by the same noble Lords, instead provides that an authority, having identified a record that contains or may contain information the subject of a request, shall take all reasonable steps to protect the record from alteration or destruction until the request has been finally determined including the determination of any appeal. I agree with the intention behind the amendment. Authorities should not be permitted to evade their responsibilities under the Bill by altering or destroying information that ought properly to be disclosed. Obviously, that is why the Bill contains the offence in Clause 75 of altering or destroying records with the intention of preventing disclosure.
  As is implicit in what the noble Lord, Lord Lester of Herne Hill, said, that deals with the "bad faith" type case. There are practical considerations why the wider proposals that go beyond bad faith will not work and why the Bill is drafted as it is. In the first place, the amendments would prevent the authority from updating information it held. In many cases the information may be of a type that changes rapidly; statistical information, for instance. This sort of information will be updated frequently. The amendment would prevent this happening with the result that the applicant would be supplied with out-of-date information. The authority would also be prevented from carrying on its work as normal because the file was, in effect, frozen. This is of particular significance in relation to electronic data.
  In the second place, freedom of information should not hamper authorities from carrying out normal records management procedures. The Lord Chancellor's code of practice made under Clause 45 of the Bill will set out desirable practices for authorities to follow. This will include the regular disposal of irrelevant or ephemeral records in accordance with the disposal policy. The amendment would prevent such routine good management, and particularly where an authority received high volumes of requests it could find many of its files constantly frozen. I repeat that where it does it deliberately, that is caught by Clause 75.
  Having said all that and subject to the need to update records and the need not to hamper normal records management procedures, where a request is made and the authority knows that it is made it should be told that it is good practice to keep the information for the purposes of answering the request. That provision will be added to the appropriate codes of practice. I suspect that it is best dealt with under codes of practice rather than by any amendments to the Bill. In those circumstances I invite the noble Lord not to pursue the three amendments.
  5.45 p.m.
  Lord Lester of Herne Hill: Speaking to Amendments Nos. 6 and 24, I am grateful to the Minister for what he said. I appreciate that we are dealing with good practice. It may be undesirable to create legalistic restraints, and it is not our purpose to hamper good administration. It seems that we have a common purpose on all sides of the House. The point raised by the noble Lord, Lord Mackay of Ardbrecknish, about the need to ensure that records are not rationalised ex post facto in a way that distorts the true record of the time seems very compelling. No doubt, that will need to be addressed in some way in the code of practice, as will the need to ensure that even where there has not been a request for information important records are not inadvertently destroyed. There needs to be some safeguard of an administrative kind that ensures that that is so because of the importance of history and of the need for historians and others to find out exactly the basis of particular decisions made by governments and public authorities.
  I am persuaded that it is not necessary to pursue these issues. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No.7:
  Page 2, line 15, at end insert—
  ("(8) In this Act, the duty of a public authority to comply with subsection (1)(a) is referred to as "the duty to confirm or deny".").
  On Question, amendment agreed to.
  [Amendment No. 8 not moved.]
  Clause 1, as amended, agreed to.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 9:
  After Clause 1, insert the following new clause—

  EFFECT OF EXEMPTIONS
  (" .—(1) In respect of any information as respects which any provision of Part II provides that the duty to confirm or deny does not arise, section 1(1)(a) does not apply, except to the extent that—

  (a) the duty to confirm or deny is excluded only by a provision not conferring absolute exemption, and

  (b) in all the circumstances of the case, the public interest in disclosing whether the authority holds the information outweighs the public interest in maintaining the exclusion of the duty to confirm or deny.

  (2) In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply, except to the extent that—`

  (a) the information is exempt information only by virtue of a provision not conferring absolute exemption, and

  (b) in all the circumstances of the case, the public interest in disclosing the information outweighs the public interest in maintaining the exemption.

  (3) For the purposes of this section, the following provisions of Part II (and no others) are to be regarded as conferring absolute exemption—

  (a) section 19,

  (b) section 21,

  (c) section 30,

  (d) section 32,

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  (e) section 34 so far as relating to information held by the House of Commons or the House of Lords,

  (f) in section 38—

  (i) subsection (1), and

  (ii) subsection (2) so far as relating to cases where the first condition referred to in that subsection is satisfied by virtue of subsection (3)(a)(i) or (b) of that section,

  (g) section 39, and

  (h) section 42.").

  The noble and learned Lord said: I have already spoken to this amendment. I formally move.
  The Deputy Chairman of Committees (The Viscount of Oxfuird): I must advise the House that should Amendment No. 10 be agreed to, I cannot call Amendment No. 11 due to pre-emption.
  Lord Goodhart Lord Goodhart had given notice of his intention to move Amendment No. 10:
  Leave out lines 8 to 10 and insert ("maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the authority holds the information").
  The noble Lord said: I have already spoken to Amendment No. 10. I would like to say that having heard what the noble and learned Lord, Lord Falconer said, this is something that we take seriously. It is something we are likely to bring back but whether we press it on return depends on whether the Government, having taken the matter away, come back with the result of further consideration. Having said that, I think that the amendment has not been formally moved and therefore I do not move it.
  [Amendment No. 10, as an amendment to Amendment No.9, not moved.]
  [Amendments Nos. 11 to 15, as amendments to Amendment No. 9, not moved.]
  Lord Lucas Lord Lucas moved, as an amendment to Amendment No. 9, Amendment No. 16:
  Line 21, leave out paragraph (a).
  The noble Lord said: The Minister has covered this matter to some extent. I can see now that the word "reasonably" in Clause 19 being subject to the information commissioner's judgment is an advance on where I thought we were. However, there are an awful lot of other privileges and rights in the Bill—notably Clause 10 which gives an applicant some control over the form in which the information reaches him or her—which I am not at all clear will come under the term "reasonably" in Clause 19.
  I give the noble and learned Lord a typical illustration. I asked a government agency for a copy of its 1998 annual report. I was told that I could obtain it from the House of Lords Library. I said, "Yes, but I would like it in electronic form". They replied, "We have it in electronic form, but you cannot have it in electronic form". That is not the state of affairs which I should like to prevail under the Freedom of Information Bill when it is enacted. We have a Government who are committed—so they say—to making us an Internet society by 2005. A necessary

  925
  part of that involves government information being readily available over the Internet. The fact that something is printed and I can obtain it from my public library or pay the Stationery Office £10 for it is no substitute for it being available on the Internet.
  If, under Clause 10, I shall have the right—should I ask for information under the terms of the Bill—to obtain that information in electronic format, as that is reasonably and easily available and easy for the public authority to provide, I do not see why I should be prevented under Clause 19 from obtaining that information in that format and why we should be, as it were, chucked out of the information society.
  I have made many such requests. At the moment they are generally refused. I am told by the Department for Education that I can apply in writing to every school for the information I require and that although the department holds it centrally in electronic form it will not release it. I believe that that matter comes under the provisions of Clause 19 as I shall be unable to obtain information from a public authority in a form which is easily available—the exemption will prevent that—but which it is reluctant to provide for one reason or another. We shall discuss the substance of that matter later. However, it seems to me that a public interest test is the right way to approach making the exemption under Clause 19 more human and usable rather than just reasonable. I believe that would bring it more into the whole ambit, purpose and style of the Bill than is currently envisaged. I beg to move.
  Lord Falconer of Thoroton: I shall speak to the matter briefly as later we shall discuss more detailed provisions that relate to electronic access. Clause 19 provides that if the information is reasonably accessible, the freedom of information regime is not instituted. The question of whether information is reasonably accessible through other means is to be decided in the first instance by the relevant public authority. If the applicant does not accept its conclusion, the information commissioner can decide the matter. No Minister will override that decision. It seems sensible that where the issue does not concern whether someone should gain access to information, but rather whether it is reasonably accessible through other means, the matter should be decided under the provisions of one part of the Bill. There should not be an overlapping set of provisions.
  I do not know whether other provisions might apply in the case that the noble Lord mentioned. I believe that in that case the information commissioner would have to decide whether the fact that the noble Lord was denied the information he requested meant that it was not reasonably accessible. The Bill establishes an independent person; namely, the information commissioner, to decide such matters. Under those circumstances I suggest that the noble Lord withdraws the amendment.
  Lord Lucas: I shall read with care what the noble and learned Lord said. I beg leave to withdraw the amendment.
  926
  Amendment No. 16, as an amendment to Amendment No. 9, by leave, withdrawn.
  Lord Lucas Lord Lucas moved, as an amendment to Amendment No. 9, Amendment No. 17:
  Line 22, leave out paragraph (b).
  The noble Lord said: This amendment concerns the security services. Does the noble and learned Lord agree with my interpretation that under these circumstances, if there were a major cost overrun on some security service project, we would have no right to know anything about it? I beg to move.
  Lord Falconer of Thoroton: The policy conclusion reached by the Government on this matter was that the security services should not be hampered by the Freedom of Information Bill. That is why the Bill is drafted in the way that it is.
  Lord Lester of Herne Hill: I perfectly understand the Government's policy decision on this matter. However, I point out that there could be extreme cases where, if the measure were rigid and absolutist in its application, the courts might have to deal with the matter. Even in the security area one can imagine a whistle-blowing situation in which, if the matter has been completely immunised under the terms of the clause from freedom of information access, it would have to be dealt with at common law due to an abuse of power. I simply mention that because one should not assume that just because something has absolute exemption under the Bill it would have absolute exemption either as a matter of common law or even under the Human Rights Act.
  Lord Falconer of Thoroton: The Bill deals with the right of the citizen to extract information from the government machine. Whistle-blowing activities are not dealt with at all under the Bill; I accept that that is a matter for the common law.
  Lord Mackay of Ardbrecknish: Does that mean, for example, that the cost of repair of the security services building damaged in a recent terrorist attack would be considered to be information which should not be divulged?
  Lord McNally: Before the Minister replies to that point, I hope that he will consider my next point. Does this mean that where the security services are engaged in non-secret activity such as the construction of a new building and that building runs over budget they can still hide behind their secrecy? Perhaps the noble and learned Lord should have asked the security services to look after the Dome.
  Lord Falconer of Thoroton: The more often the Dome is discussed the better as that generates more publicity for it. The Government have taken a policy decision to exclude completely the activities of the security services from the terms of the Bill. The kind of matters to which the noble Lords, Lord Mackay of Ardbrecknish and Lord McNally, referred are subject

  927
  to parliamentary scrutiny. Detailed arrangements have been put in place to deal with expenditure and other such matters.
  Lord Lucas: I beg leave to withdraw the amendment.
  Amendment No 17, as an amendment to Amendment No. 9, by leave, withdrawn.
  Lord Lucas Lord Lucas moved, as an amendment to Amendment No. 9, Amendment No. 18:
  Line 23, leave out paragraph (c).
  The noble Lord said: Clause 30 concerns "Court records, etc." I address my remarks to "etc" as I believe that the Minister has covered court records. Clause 30 covers public authorities other than courts, for example, tribunals and statutory inquiries, the documentation of which is not subject to the provisions of the Bill. Clause 30 contains a no harm test and would apply even when the disclosure could not prejudice any proceedings, for example, when they have been completed or abandoned. Its provisions would mean that unpublished tribunal rulings, such as those of the vaccine damage tribunal, could not be obtained from the Department of Health. Military boards of inquiry reports could not be obtained from the Ministry of Defence. Unpublished reports on planning inquiries would be exempt. Documents such as public interest immunity certificates would always be exempt even when they did not contain sensitive information. I believe that that is an undesirable state of affairs and that there ought to be a public interest test applied in those cases. I beg to move.
  6 p.m.
  Lord Lester of Herne Hill: Perhaps I may explain that I am not an enthusiast for the amendment. We are in a judicial area, including all tribunals, arbitrators and so on. The right body or person to decide on how the public interest should be weighed in these cases should be the judge, the chair of the tribunal or the arbitrators. That applies especially in the case of public interest immunity. We shall start crossing wires and producing a very complicated situation if, using a balancing and harm test, the Freedom of Information Bill begins to intrude into those other areas. The courts are pretty astute to ensure that restrictions in those areas are not unnecessarily imposed and that the public has access to information, where necessary, where it will not infringe, for example, fair trial. For that reason I should not be in favour of the amendment.
  Lord Falconer of Thoroton: The reasoning given by the noble Lord, Lord Lester of Herne Hill, reflects the reasoning of the Government. Where the matter is in the hands of a court—and in Clause 30 a court,
  "includes any tribunal or body exercising the judicial power of the State"—
  it should be for that body to decide when it is appropriate to release that information.
  Lord Lucas: I beg leave to withdraw the amendment.
  928
  Amendment, by leave, withdrawn.
  [Amendments Nos. 19 to 21, as amendments to Amendment No. 9, not moved.]
  Lord Lucas Lord Lucas moved, as an amendment to Amendment No. 9, Amendment No. 22:
  Line 32, leave out paragraph (g).
  The noble Lord said: The Minister set out the position with great clarity. My question concerns the nature of the public interest test which would be applied in ordinary law were the matter to arise. The nature of that public interest test is considerably narrower than the public interest test envisaged under the Bill. There is not equality. For instance, the common law test takes particular account of the identity of the person to whom the information is disclosed; and there are other aspects on which that test is different from the test provided in the Bill. I would prefer the test in the Bill to be applied rather than the common law test. I beg to move.
  Lord Falconer of Thoroton: Clause 13 refers to a public interest in disclosing a particular fact. In relation to the common law test and confidentiality, the courts say that on the face of it someone has a right to keep that information confidential but ask, despite that confidentiality, whether there is a public interest in disclosing the information at large. I am sure that lawyers could fine tune the differences between the two tests but they are in substance sufficiently close. In order to establish whether the exemption applies, consideration must be given as to whether common law public interest applies. Having decided that it does not, it would be absurd to have to consider again a similar test under the current Clause 13. That does not seem sensible to us. That is why we have excluded the matter from Clause 2, which was Clause 13.
  Lord Lucas: I thank the Minister for that explanation. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Lucas Lord Lucas moved, as an amendment to Amendment No. 9, Amendment No. 23:
  Line 33, leave out paragraph (h).
  The noble Lord said: The amendment is a more practical way of dealing with the problem of the complicated and dense repeals which would be required to get rid of the exemptions one by one. Exemptions have always proved somewhat hard to deal with. That takes up a great deal of official time. Consideration has to be undertaken in the absence of any set of facts which might illuminate whether or not a statutory restriction should be left. At the end of the day, the restrictions remain because it takes too much work to remove them.
  A mechanism allowing them to be overridden if the circumstances of the case demanded it would be an easier approach. We could deal with the issue on a case

  929
  by case basis without having to go into the restrictions on a lengthy and difficult process of legislation. I beg to move.
  Lord Lester of Herne Hill: I do not support the amendment for reasons similar to those given in debate on an earlier amendment on judicial powers. The amendment seeks to override Community obligations or something forbidden under another statute or punishable as a contempt of court, treating the Freedom of Information Bill as trumping it. But that would not produce clarity but confusion.
  I take the examples covered by Clause 42. There is already a fair recognition of the importance of free speech. For example, in Community law in the Community obligations the European Court of Justice would vindicate the right to free speech subject to necessary exceptions. The same applies to contempt of court. The Contempt of Court Act 1981 was introduced specifically to ensure that free speech was not trumped unnecessarily by fair trial; and the same as regards common law in relation to contempt. I cannot say the same as regards,
  "prohibited by or under any enactment".
  However, under Section 3 the Human Rights Act would come to the rescue of that by re-reading an enactment in a way which was narrow if it unnecessarily interfered with free speech.
  Therefore, safeguards are built in although one cannot read them on the face of the Bill. One probably has to be a lawyer to advise on the issue, which is a regrettable necessity for most people—if not for lawyers. I do not think that the lawyer problem would go away if the amendment were accepted by the Government.
  Lord Falconer of Thoroton: Clause 42 identifies that there are other legal bars on disclosure. In effect, it states that they should survive. However, it is worth drawing attention to two matters in the Bill. First, Clause 74(1) states:
  "If, with respect to any enactment which prohibits the disclosure of information held by a public authority, it appears to the Secretary of State that by virtue of section 42(1)(a) the enactment is capable of preventing the disclosure of information under section 1 or 13, he may by order repeal or amend the enactment for the purpose of removing or relaxing the prohibition".
  The Secretary of State has power to deal with the point on Clause 42(1)(a). He cannot deal with a Community obligation in that way. Nor can he deal with a contempt of court problem. It is right that he should not be able to do so by order. To some extent, the Bill gives some comfort on the point the noble Lord raises.
  At present 400 bars would fall within Clause 42(1)(a). A review of the bars is ongoing. I hope that the Government will announce in due course possible candidates for amendments or repeal. I believe that we are dealing with the matter in a sensible way. I respectfully suggest that the noble Lord withdraws the amendment.
  Lord Lucas: I am grateful for that explanation. I beg leave to withdraw the amendment.
  930
  Amendment, by leave, withdrawn.
  On Question, Amendment No. 9 agreed to.
  [Amendment No. 24 not moved.]
  Lord Lucas Lord Lucas moved Amendment No. 25:
  After Clause 1, insert the following new clause—

  AUTHORITY TO CONSIDER PARTIAL DISCLOSURE OF EXEMPT INFORMATION
  (" . When a public authority has declined to disclose information, the public authority shall consider whether, by deletion or summarisation or otherwise, the relevant information may be rendered into a form where it is suitable for disclosure.").
  The noble Lord said: When a public authority finds itself, for good reason, unable to disclose a whole set of information available to it, I should like to be sure that it has a positive duty to make as much as possible of that information available to the applicant; it might be by deletion. I understand that that is provided for in the structure of the Bill. I should be grateful for confirmation of that.
  I am not sure that summarisation is covered. If I were to ask a school for its examination results, it might reasonably refuse to provide me with the full details because that would disclose the names of each person who had taken the examinations which was its private information. However, by an act of summarisation and deletion, the school could reach the point at which I could no longer identify that, or individual classes, although I could draw conclusions about the performance of individual teachers, which might also be thought to be undesirable. I seek a reassurance about the fact that the school will have a duty to do that and that it will not be able to hide behind the fact that some of the data, or a level of detail in the data, might reasonably be regarded as exempt information. I beg to move.
  Lord Mackay of Ardbrecknish: My noble friend asks two interesting questions, one of which involves a large document, part of which was clearly exempt but other parts of which were not. As my noble friend said, it would be useful to have clarification about whether public authorities would be under an obligation to release those parts that were not caught by the Bill, although they would have to remove those parts that were caught by it.
  My noble friend's second point may be more difficult to achieve, although if some records cannot be made public because of information in them—perhaps the names of the people involved—it is fair to ask whether there would be an obligation on authorities to produce a summary that excluded those names. The two interesting points that were raised by my noble friend need clarification.
  Lord McNally: This may be an appropriate moment to recall the point that was raised by the noble and learned Lord, Lord Archer of Sandwell, and in the Select Committee, namely, that the Irish Government have invested much time and money preparing public servants and helping them to think constructively about how to make the Bill work. The amendment

  931
  involves a classic case. If there had been proper training, requests that could be partially satisfied would be approached in that positive manner. Do the Government already have in mind a programme of training, such as that which was explained to us by the Irish commissioner? That programme has had an impact on the culture of the Irish public service and on its efforts to respond constructively to requests.
  Lord Falconer of Thoroton: We have been discussing whether the Bill in effect permits partial disclosure. It will in fact require that when some of the information that is requested is exempt but other information is not. The right of access in Clause 1 involves information that is recorded in any form. That means that the right of access attaches to the content of documents or records rather than to the documents or records themselves. When a document contains a mixture of disclosable and non-disclosable information, the disclosable information must be communicated to the applicant.
  On the point about summarisation, Clause 10 states that when applicants have a preference for one of certain specified means in which they wish the information to be communicated to them, the authority shall, so far as is reasonably practicable, give effect to that preference. The means specified involve copying of the information, inspection, or a digest or summary of the information. If the applicant requests a copy of the document that contains the information or to inspect the actual document, Clause 10 requires the authority to give effect to that preference so far as is reasonably practicable to do so. That includes "blanking out" information, such as names that cannot be disclosed. Similarly, if the applicant has requested a digest or summary of the information, the authority must also comply with that request, if it is reasonable to do so. I hope that that deals with the points that were raised by the noble Lords, Lord Lucas and Lord Mackay of Ardbrecknish.
  Training, we accept, is vital. That is already in hand across government and in particular in the Home Office, which is responsible for the freedom of information provisions. The commissioner will have a role in disseminating advice on the Bill's operation. We fully expect the commissioner to provide training materials. Clause 45 contains obligations to produce codes of practice which, I believe, have already been made public. With regard to training —although this will apply to every public authority—the code of practice states:
  "All communications in writing to a public authority fall potentially within the scope of the Act if they seek information and must be dealt with in accordance with the provisions of the Act. It is therefore essential that everyone working in a public authority … is familiar with the provisions of the Act, of the codes of practice issued under its provisions and any relevant guidance on good practice issued by the commissioner. Authorities should ensure that proper training is provided."
  932
  The process has started, its importance is recognised and the commissioner will have a role to play. There is obviously a long way to go, but we fully recognise the importance of the process.
  Lord Lucas: I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 2 [Public authorities]:
  6.15 p.m.
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 26.
  Page 2, line 16, at end insert—
  ("( ) any Minister of the Crown, government department, local authority, government appointed task force, quasi-autonomous body, any body carrying out public administration at a national, regional or local level or any other body where either—

  (i) more than half of its funding is received either from government or from bodies that in turn receive more than half of their funding from government, or

  (ii) a majority of the members of the managing body of the body is appointed by government or where it is subject to management supervision by another public authority;").

  The noble Lord said: The amendment refers to those bodies that will be captured by the Bill. Currently, quangos, task forces and goodness knows which other bodies that are created by governments who pretend that those bodies have little or nothing to do with government, are listed in Part VI of Schedule 1. That schedule contains a pretty exhaustive list, which includes organisations such as the Apple and Pear Research Council. It is hard to establish whether any bodies have been missed out from the list.
  I tabled the amendment against that possibility, and against the possibility that the Government will establish more task forces, quangos and similar bodies. In order to list the bodies in the schedule, the Secretary of State would have to designate them. However, the requirement that will be placed on them uses the word "may". A body could be established and it could function for some time before it fell within the Bill's ambit. I tabled the amendment to deal with that situation. The amendment uses a catch-all definition and it would ensure that every obscure quango was covered. It is self-evident that if more than half of the funding was received from the Government, the relevent body would be caught by the Bill. I want to go further and ensure that a body that was set up by another body would also be caught by the Bill. If the body from which one wanted some information received more than half of its funding from a body that in its turn received more than half of its funding from the Government, it should fall within the scope of the Bill.
  My second approach to the matter—this is an either/or approach—involves the situation in which a majority of members were appointed by the Government. That would clearly affect many quangos and task forces—I suspect that it would affect all task forces, whose members are usually appointed by the

  933
  Government. My approach would ensure that the list in Schedule 1 was always kept up to date. I beg to move.
  Lord Lester of Herne Hill: I am sympathetic to the aims of the amendment. We had a similar problem on the Race Relations (Amendment) Bill, which imposes a duty on public authorities not to discriminate. The question was how to define the public authorities that were caught by the new duty. There have been great arguments about whether to set down a list, as under the data protection legislation, or to have a more inclusive definition, as under the Human Rights Act 1998. After a good deal of discussion in this House, the Home Secretary accepted both. He agreed that a specific list would give legal certainty, but he also agreed to a general catch-all provision. I should have thought that that was desirable in this case, although I am not wedded to the specific amendment.
  Lord McNally: I have a more basic inquiry. I know that the noble Lord, Lord Mackay of Ardbrecknish, is concerned about what the noble Lord, Lord Haskins, does. Is he confident that the catch-all would enable him to find out at last?
  Lord Lucas: Am I right in understanding that even as the Bill stands, let alone under the amendment, a number of charities will fund themselves subject to the requirements if they receive substantial government support to deal with issues such as people who sleep rough on the streets?
  Lord Molyneaux of Killead: I have been caught up in various voluntary and quasi-voluntary bodies. I cannot help being surprised by the Treasury's generosity in funding and part-funding so many bodies. All too often, when someone feels that the information that they may be handling or discussing should not be revealed to the public gaze, their colleagues tend to comply with the suppression of such information for the sake of peace and harmony. The amendment is desirable. I know that the Minister will listen sympathetically, as usual. I hope that at some stage he will table an amendment in line with the proposals of the noble Lord, Lord Mackay of Ardbrecknish.
  The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): The amendment has potentially very wide implications. It would automatically include within the definition of "public authority" certain groups or classes of body that the Government have provided should be considered individually and covered only if appropriate.
  We do not disagree in principle about many of the groups that the noble Lord, Lord Mackay, wants covered. I entirely agree that government departments and local authorities should be brought within the freedom of information requirements. However, the amendment is unnecessary because it would list government departments and local authorities generically as public authorities. Parts I and II of Schedule 1 already do that.
  934
  It is also unnecessary to list Ministers of the Crown as public authorities separately from their departments. For the purposes of the Bill, Ministers are covered in respect of their statutory responsibilities within the definition of a government department. In practice, they will hold little information that is not held by their department.
  I also depart from the noble Lord in the way in which the amendment would treat other classes of bodies. The issues are reasonably straightforward. We believe that it is right to use a generic description to cover a class of bodies when possible. We have done so for a large number of such classes or groups in Parts I to V of Schedule 1. Those generic descriptions include many bodies that carry out public administration at all levels of public service. However, in many cases it is not possible to identify a generic description that properly or effectively describes the bodies that may need to be covered at any time. The amendment has fallen into that trap.
  We have looked long and hard at the definitions of non-departmental public bodies, quangos—or quasi-autonomous bodies, as the amendment calls them—and other similar titles. We concluded that such definitions were too vague or unreliable to be of practical use in freedom of information legislation. Clarity is essential for the bodies themselves, because the public will want to know which bodies are included, and for the information commissioner, who will be responsible for enforcing the requirements.
  Similar concerns of definition arise for the term "government appointed task forces", which is also used in the amendment. Are they different from working parties? Should a working party be considered within the same generic description as an advisory group?
  All such bodies are different from bodies that carry out public administration, but who is to say what functions are contained within the general description of "public administration"? Should it matter that only a small part of the functions of a body carrying out public administration might be on work of a public nature? The amendment would not allow such a fine distinction. Any such body would be automatically designated for freedom of information purposes and all the information that it held, whether it related to work of a public or private nature, would be brought within the disclosure requirements.
  The Government's approach is more considered and more focused. We have included any public body that we are aware of that carries out functions that ought to come within the scope of the Bill either under a generic description or by listing it in Parts VI and VII of Schedule 1.
  We do not claim that the lists are exhaustive, although we have consulted widely to ensure that they are as comprehensive as we can make them. We recognise that some bodies may be missing and have provided that the Secretary of State may amend the schedule using the powers granted in Clause 3. To allow sensible flexibility, Clause 6 provides additional powers to enable an order to apply the Bill only to

  935
  limited descriptions of information or to amend an entry in Schedule 1 to apply the Bill only to limited descriptions of information held by a public authority.
  The Secretary of State has powers under Clause 4 to bring within the scope of the Bill private bodies that carry out public functions or provide a public service under contract. That includes voluntary organisations and charities. However, an important qualification is that any order made under Clause 4 must follow a process of consultation with the appropriate person or persons and must specify the functions of the public authority designated by the order. That is a better way of addressing the concerns about the propriety and effectiveness of coverage of such bodies under the Bill.
  The final part of the amendment would automatically bring within the scope of the Bill any body that receives a majority of its funding from the Government or from a body that receives more than half of its funding from the Government. What would happen if the funding changed? Would the body cease to fall within the meaning of the amendment? The provision would also cover organisations in which the majority of members of the managing body were appointed by the Government or subject to management supervision by another public authority.
  The Bill has been criticised for its complexity of drafting, but the amendment might win a Pulitzer prize for opacity. I understand the desire to ensure that no stone is left unturned behind which a body carrying out a public function might hide from the spotlight of the legislation, but we need to stress again the importance of clarity about which bodies are brought within the scope of the Bill and which functions are covered. I venture to suggest that the amendment fails against either test.
  The Government have proposed a sensible way of ensuring the widest possible coverage commensurate with the need to be clear and fair. The Bill provides for the Secretary of State to have the flexibility to bring relevant bodies within its scope when appropriate. I commend our approach and I invite the noble Lord, Lord Mackay, to withdraw the amendment.
  6.30 p.m.
  Lord Mackay of Ardbrecknish: I am grateful to the Minister for that detailed reply. I thought that he was about to accuse me of tabling a "cumbersome and bureaucratic" amendment—the words that he uses to describe the Political Parties, Elections and Referendums Bill. Did he feel that I would be lonely without him at the other Dispatch Box after all the days that we have had on that Bill—and with all the days that we still have to come?
  I have listened with some care and I shall read Hansard with some care. There is a problem. If a body receives public funds and the public wish to find out what has happened to those funds, they could come up against a brick wall the moment that the money goes to the body in question if it is not listed in the schedule.
  I shall have to study carefully and discuss with others the exact consequences of what the noble Lord has said. If a member of the public who tries to find out
  936
  how public money is spent by a body finds that it is not covered by the Freedom of Information Bill—or Act, as it will be—that member of the public rightly may be concerned that something which should not be hidden is being hidden.
  I fully accept that my definitions are not as they should be. However, at least they address the point that a body which receives more than half its funding from the Government cannot be considered to be entirely non-public, because clearly it is. Equally, if more than half the members of a body have been appointed by the Government, clearly it is not a public body, at least in part.
  If the noble Lord, Lord McNally, reads Appendix 1, he will see that I may even achieve my objective and have the noble Lord, Lord Haskins, come to the House to answer for his task force. However, frankly I believe that that is fairly unlikely; it will probably be the Minister who answers. None the less, we should be able to find out a great deal about what that task force does. It would not be able to hide from us its activities and the papers that it produces because it would be caught by this Bill.
  As I said, I believe that this issue contains a problem which we shall have to pursue. I even believe that if a charity receives more than half its money from the Government, the public have a right to know what is going on in that charity. However, I fully appreciate that such access would apply only to that part of the charity's work which is funded by government money and not to other parts of its work which are not funded by such money.
  It is clear that we shall have to consider this matter further. I am grateful to the Minister for his explanation. We shall read it with care and decide whether we need to approach the matter in a slightly different way and return on Report with another amendment to deal with those issues. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 27:
  Page 2, line 26, at end insert ("on a contractual or agency basis").
  The noble Lord said: This amendment was suggested to me by the Law Society of Scotland. I always do what lawyers tell me to do and that is why I tabled it.
  The purpose of the amendment is very much exploratory because in recent years the concept of a public authority has undergone considerable redefinition. Much work which was once undertaken directly by local authorities and government is now performed by the private sector. Indeed, even legal work for local authorities is contracted out. I live in Wandsworth in London and the refuse collection there is contracted out and operates extraordinarily efficiently, so far as I can see. In other places, many of the councils' civil engineering services are also contracted out. The Law Society considers that some

  937
  clarity should be brought to bear on whether those bodies are covered by the Freedom of Information Bill.
  This amendment is not unlike the one that we have just debated in that it concerns bodies that carry out some public and some private work. How are those bodies covered? That is the question that I pose on behalf of the Law Society. I also ask whether the Government need to address certain definitions in relation to contracting-out services in the light of the huge changes which were begun by the Conservative government and, of course, continued by the Labour Government. I beg to move.
  Lord Bach: I am grateful to the noble Lord for explaining what he means by this amendment and for explaining that he seeks clarity. I hope that I can provide that.
  This amendment would have the effect of limiting the definition within the Bill of when information is considered to be held by a public authority. If left as it is at present, Clause 2 would provide that information is so held either if it is held by the authority, unless it is holding it on a third party's behalf, or if,
  "it is held by another person on behalf of the authority".
  The amendment seeks to alter the latter instance to the extent that it must he held by the third party on either "a contractual or agency basis".
  I say immediately that we agree that the usual situation will be that the basis on which information is held by a third party on behalf of a public authority will be contractual or as an agent. The clause covers that at present and, to that extent, the amendment is unnecessary.
  At first it was not clear to us what was behind the noble Lord's amendment. Of course, now that the noble Lord has moved it, it is clear. We feel that if the amendment were carried forward—I now know that that is not the intention today—its implications might be quite serious.
  By limiting the definition, as the amendment seeks to do, only to information held on a contractual or agency basis, too rigid a stricture would be placed on the type of information which public authorities would have a duty to disclose under the Bill. Perhaps I may point out to the Committee that a danger arises from the possibility that bodies may exist whose relationship with a public authority does not come within the strict legal definition of either a contract or an agency but they may hold information to which access should be afforded under the Bill.
  Perhaps I may provide the Committee with an example. Were an NHS trust to transfer some of its records to a body such as the Wellcome Institute for the History of Medicine, there may be some uncertainty as to the basis on which the latter body held that information. Any such uncertainty in the coverage of the Bill would be unwelcome. That is why we cannot accept the amendment as it stands.
  With regard to the noble Lord's question as to whether the contracted-out functions of public authorities are covered, the answer is that they can be
  938
  covered by an order under Clause 4. The amendment that he has moved in order that we may have a brief discussion does not strictly cover that point. I invite the noble Lord to withdraw his amendment.
  Lord Mackay of Ardbrecknish: I thank the noble Lord, Lord Bach, for his reply. This begins to look like a replay of the political parties Bill with, first, the noble Lord, Lord Bassam, and then the noble Lord, Lord Bach. I had better resist the temptation to introduce a political parties (amendment) Bill.
  I am grateful to the noble Lord for his explanation. I am surprised that his officials did not understand at what the amendment was aimed. However, I believe that he has made it clear that the concerns of the Law Society are not well founded and it can rely on the comments that the noble Lord has just made. With that, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 2 agreed to.
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 28:
  After Clause 2, insert the following new clause—

  PUBLIC AUTHORITIES: ASSISTANCE OF APPLICANTS
  (" . Public authorities must assist applicants in making requests for information.").
  The noble Lord said: In moving Amendment No. 28, I wish to speak also to Amendment No. 29. Also in this group is Amendment No. 81 in the name of my noble friend Lord Lucas.
  We almost ran a trailer for this debate earlier. These amendments all have the same aim: to ensure that on the face of the Bill people who seek information from public authorities will be assisted in that search; otherwise, a severe danger exists that the public may become hopelessly lost in seeking an answer to a question. Dare I say it (I have said it before), I believe that they will become hopelessly lost in trying to work through the Act to discover what their rights are. They may well need help and guidance.
  The code of practice which we introduced when in government required bodies to guide applicants towards the information they sought. That was art important aspect of the code. Someone may require, for example, information about acute hospital beds in some part of the country. They may go to the wrong place to seek the information. The person being asked could reply simply, "We do not hold that information", and shut the door. What we and, I am sure, the Government want is for the official to say, "We do not hold that information but I suggest that you go to such and such a body. They hold the information and they will help you". We are attempting to achieve that here.
  My noble friend proposes the same thing in a slightly different way and I am unsure whether I prefer his amendment or mine. I hope that the Government will appreciate what we are trying to achieve and come forward with their own amendment later.
  I am told that most freedom of information laws, including those of New Zealand, Australia and Ireland, place authorities under a statutory obligation to assist requesters. The Irish Act implies that such a duty is so important that it is in the Long Title. Under this Bill the authorities would be encouraged, but not required, to provide assistance. I believe that it would be well worth our while to firm up this matter, so that it becomes a duty and so that public officials at whatever level of government will realise that they are under an obligation to help somebody on his or her way to the information that he or she seeks. I believe that our aim is fairly self-evident. I beg to move.
  Lord Lucas: Amendment No. 81, standing in my name, says much the same as that of my noble friend. I share with him a conviction that this is a crucial change to make to the Bill; that there must be an obligation on public authorities to help if ordinary citizens are to feel that they have the rights that are provided for under this Bill.
  There is a potential danger in these amendments in that they may make it impossible to answer parliamentary questions in the way that Ministers have become accustomed and in the way that I was accustomed to answering them, which is the unhelpful answer which studiously avoids giving the crucial piece of information that would help the inquiring noble Lord on to the next awkward question.
  If there were a duty to assist included in the Bill, we would have a right to contact the Ministry and say, "What question should I ask?" One would have a right to receive the kind of information one sought and the Ministry would have to help. Fortunately, Clause 19, under which there is no such right, comes to the rescue. We have a right to ask parliamentary questions, therefore we will not be able to use the Freedom of Information Bill and Ministers will continue to give us blocking answers to parliamentary questions while helping the public. This amendment is without danger to proper ministerial practice and should be adopted.
  Lord Archer of Sandwell: I believe that the two noble Lords who have spoken have drawn attention to a genuine problem. My concern goes a little wider than theirs. In order to lay a foundation for exercising the rights under the Bill, a member of the public has to make a request in the form set out in Clause 7. It is not a demanding requirement, but members of the public may be less familiar than your Lordships will be by the end of our deliberations with the provisions of this Bill. It is not a usual topic of conversation in the clubs and pubs of my former constituency.
  Someone who meets a member or an official of a public authority on the steps of the town hall and simply asks a question may have no idea that he is purporting to exercise rights under any Act at all and he may not know what chain of events he is setting in motion. He may not know that under Clause 7, unless he makes a request in writing, it will not be a request under the Act, still less, that if he were to scribble it on the back of an envelope that he would totally
  940
  transform matters because all the consequences of the Bill would come into force. If the public authority did not wish to be troubled with the matter, it may not inform such a person of the situation.
  If a public authority does not intend to answer a question, it would not be asking too much to say that in the Bill there should be guidance about what it should do. Perhaps there could be a small booklet that sets out the rights and how to enforce those rights. If the Government have plans to produce such a booklet, perhaps my noble and learned friend will tell the Committee. I believe that we would be wrong to leave the matter in the air.
  6.45 p.m.
  Lord Lester of Herne Hill: These amendments are designed to promote a cultural change, away from the culture of secrecy to which the Minister referred earlier. As long ago as 1982, as the noble Lord, Lord Mackay of Ardbrecknish, pointed out, the New Zealand parliament found it appropriate to introduce a similar provision into its freedom of information Act, as did the Commonwealth of Australia.
  Perhaps most strikingly of all, again as the noble Lord, Lord Mackay, has said, in 1997 in Ireland, in a country that was—I say with affection—at least as full of the culture of secrecy as this country, Ireland's parliament dealt with this matter not once but twice: in the Long Title and in a substantive provision in the Bill. Kevin Murphy, the admirable Information Commissioner, to whom my noble friend Lord McNally has already referred, speaking on 19th November 1999, at the University of Glasgow said:
  "At first sight it might not seem that deepening the public awareness and understanding of the Act is of great relevance to changing the culture of secrecy in the public service. However if people really understand their rights then they will be able to exercise them wisely. Judicious exercise of the rights conferred by the FOI Act can encourage public bodies to change their practices".
  Preferably that needs to be dealt with in the Bill, but certainly in a code of practice in a way that makes it quite clear that officials are to be user-friendly and to help people who make requests under the Bill so as to avoid the continuation of the bad old past with which we are all familiar.
  Lord Norton of Louth: I support the amendments. On the face of it, they are extremely sensible and they are central to realising the intent of the Bill. Without them it is possible for an authority, in effect, to frustrate the whole intention of the Bill.
  Clearly, someone who knows the process, understands his rights and is determined to acquire the information will do so—the measure provides for that—but what about those who do not understand the process and who are not determined? One can envisage an authority frustrating them by asking why they want the information and not volunteering what is available and not assisting them.

  941
  My noble friend Lord Lucas mentioned that we have touched on this point in earlier amendments. In responding to Amendment No. 25 the noble and learned Lord, Lord Falconer, referred, quite properly, to Clause 10(1)(c) under which an applicant can request information in summary form. However, if the information is not requested, there is no obligation on the authority either to volunteer or to indicate that that information may be usefully provided in that form. The amendment would embody the spirit of the Bill and I believe that without it problems would arise.
  The noble Lord, Lord Lester, touched upon the argument that there may be a case for not including it on the face of the Bill, but for putting it in the code. I see the argument for that, but my preference would be for something to be on the face of the Bill, perhaps in the form of the amendments before the Committee, and for the code of practice to flesh out the matter and how it should be given effect.
  The amendments touch on an important point. I believe that the amendment in the name of my noble friend Lord Lucas goes more to the spirit of the Bill, although in terms of drafting I believe that the amendments of my noble friend Lord Mackay are preferable. Those are important points and there is a case for putting something on the face of the Bill.
  Lord Hunt of Chesterton: I also support the general idea behind these amendments. Noble Lords have talked about public authorities and government departments, but of great concern to the scientific community is the fact that a huge amount of information is issued by agencies. Government agencies are not listed as such. I presume that organisations such as the Ordnance Survey, the Meteorological Office, many health departments and so on are included in government departments. Clarity on that matter would be helpful.
  There must be greater encouragement to openness. New Zealand, which is often lauded as an open country, was the first in the world to introduce exorbitant costs for certain kinds of data. It required great protests by other countries to make New Zealand take a more sensible view. Therefore, cost as well as openness is very important.
  Another feature about which the scientific community is extremely concerned is the ready electronic access of information. The point made earlier by the noble Lord, Lord Lucas, was extremely important. This should be seen as part of making assistance very easy. I am trying to do something about the fact that the House of Lords does not receive meteorological forecasts and data from one of its own agencies in an easy and open fashion. One has seen recent reports from the United States that people are able to obtain information from government electronically very quickly in a way that is not possible in this country. That is all part of our expectation of how the Bill will impact on people. I hope that the way that the Bill is presented, including this clause, will assist that.
  Lord Bassam of Brighton: The Government recognise that these amendments are well meaning.
  942
  Each in its own way seeks to place a duty on public authorities to assist applicants either to understand or exercise their rights under the Bill. The noble Lord, Lord Lester, put his finger on it when he said that it was all about a cultural change. I agree with that. Amendment No. 81 moved by the noble Lord, Lord Lucas, seeks to achieve that by placing a duty on the authority to give reasonable assistance to an applicant, having regard to the relevant guidance in the Secretary of State's code of practice. The two amendments moved by the noble Lord, Lord Mackay of Ardbrecknish, seek to achieve a comparable result, although in this case the duty to assist a member of the public in making a request for information is to be unlimited, while the public authority is required to provide such assistance as is practicable in assisting the applicant to understand the access and appeal procedures within the Bill.
  I well understand the good intentions which have informed both noble Lords in moving these amendments. It is an understatement to say that I have considerable sympathy with the desire to ensure that the public is able to enjoy the rights which this Bill will provide. However, we do not believe that the amendments as drafted necessarily offer a sensible way forward.
  When we replied to the report of the Select Committee on Public Administration on the White Paper, the Government accepted the need for authorities to give such assistance as set out in the amendments. However, on reflection, the Government decided that the best way to ensure that was not through the creation of statutory duties along the lines proposed by either of the noble Lords. The reason for this is that statutory duties must be clear and definite if they are to have genuine meaning, not only so that authorities are clear as to how to follow them but so that the enforcement body, in this case the commissioner, can be sure when duties have been breached.
  The proposed amendments would place a duty on authorities which would be vaguely defined and therefore difficult to enforce. What are reasonable steps in one situation may be very different in another, depending on the type of request, the type of authority and the type of questioner. The kind of assistance that a large government department might reasonably give to an individual requester would be different from the kind of assistance that a GP might reasonably be able to give to a multinational drug company that made a request. It is all rather vague. The Government believe that these good intentions might well lead to bad law. The amendment moved by the noble Lord, Lord Lucas, would help in seeking to give guidance as to what might be considered reasonable by referring to the provisions set out in the code of practice which my right honourable friend the Home Secretary will issue.
  Clearly, it is good practice for authorities to give help where it is appropriate and in a manner that is appropriate. I am certain that the code is the correct place for such advice to be set out. We have, therefore, drafted the Bill to include a requirement that the Secretary of State's code of practice under Clause 44 should include guidance on the provision of advice by

  943
  public authorities to persons who propose to make, or have made, requests for information from them. But we have gone further than that. Clause 46 of the Bill places specific duties on the information commissioner to provide advice to the public and, importantly, to perform her duties under the Bill in such a way as to promote good practice and the observance of the requirements of the legislation and the provisions of the codes of practice by public authorities.
  I have a problem, however, with the noble Lord's amendment which would introduce a requirement that those aspects of the code should be mandatory. The strength of the Government's proposals is precisely that they leave the code as a flexible medium. This means that the code can set out the kind of assistance authorities should give in broader terms than is possible in a statutory provision. It also means that the commissioner, when issuing practice recommendations to authorities which have failed to comply with the code, can have regard to current best practice in making her decision, not just the strict letter of a statutory provision. I shall have more to say about enforcement of good practice in a moment.
  Lord Lester of Herne Hill: It would assist the Committee if it could see the draft code during these debates to see whether some statutory provision is needed or whether it is well taken care of in that code. Is it possible for the draft code to be made available before Report stage so that the Committee can consider its contents?
  Lord Bassam of Brighton: I believe I am right in saying that a copy of the draft is in the Libraries of both Houses. If the noble Lord wishes to have it, I undertake to provide a copy to him and other Members of the Committee who have taken part in the debate.
  I need to say a word about Amendments Nos. 28 and 29 spoken to by the noble Lord, Lord Mackay of Ardbrecknish. The first of those amendments would introduce a statutory duty on public authorities to assist applicants to make a request for information, which is a very desirable outcome. To that extent the amendment echoes the intention behind the earlier amendment moved by the noble Lord, Lord Lucas. Strangely, the amendment in the name of the noble Lord, Lord Mackay, makes that statutory duty an open-ended one by missing out the qualification that the noble Lord, Lord Lucas, thought appropriate; namely, that the assistance offered should be "reasonable".
  If Amendment No. 28 were accepted every public authority would be under a statutory duty to make available an unspecified amount of its resources and energies at the behest of an applicant to assist that applicant to make an application. When would that duty be fulfilled—only when that applicant had framed his or her "ideal" request? Clearly, in the circumstances that would be over the top because of the burden which it could place on such authorities, many of which, we should recall, would be small
  944
  bodies or even individuals. They could be school governing bodies, my favourite small local authority, Adur District Council, a primary care group or a general practitioner. The burden on some of those public bodies could he quite disproportionate.
  The second amendment of the noble Lord, Lord Mackay, requires that a public authority should be under a duty expressly to assist an applicant to understand the procedures for making an application for information or appealing against a refusal to disclose information. I welcome the recognition in this amendment, if not the earlier one, that any duty should be qualified—in this case by what is practicable—and not open-ended. However, while I welcome the amendment I cannot commend it to the Committee for reasons that I have already explained; namely, in essence the duty is inappropriate in such circumstances.
  I said that I would return to the issue of enforcement. I fully accept that compliance with the published codes of practice would not be enforceable in the courts in the same way that a statutory duty might be. As the provision is drafted, the information commissioner has the power to look at compliance and issue practice recommendations. I believe it would be an exceptional authority which wilfully ignored such a recommendation, particularly given the commissioner's powers to name and shame in any report that she might make to Parliament. An additional point is that the code of practice could be referred to in any test case which was the subject of judicial review. The powers of naming and shaming should not be underestimated in regard to public sector bodies keen to keep the confidence of the public they serve.
  Perhaps I may pick up one or two points that have been raised in the debate.
  7 p.m.
  Lord Richard: Before my noble friend leaves that point, may I ask him a question on what he has said already? He said that there will be a duty on public authorities to advise. That is contained in the code. Is there any duty to assist as well as advise?
  Lord Bassam of Brighton: My understanding is that they will have a duty to both advise and assist. I think the two come together.
  Lord Richard: It would cover both?
  Lord Bassam of Brighton: Yes, I think that is right.
  My noble and learned friend Lord Archer asked a simple question; will the Government produce a booklet? It will not be a matter for the Government, it will be a matter for the information commissioner. But we expect to prepare information for the use of both authorities and applicants. The noble Lord, Lord Lester, asked whether there will be any provisions in the code of practice? The answer is yes. The draft code—as I said earlier—is published and it contains provisions on good practice as regards providing assistance.

  945
  That covers most of the questions that were asked earlier.
  Lord Archer of Sandwell: Before my noble friend sits down, perhaps he will answer the other question which I put to him. Will the code recommend that authorities give assistance to people whose request for information does not fall within the Act—for example, because it is not in writing? They may not know that they have to put the request in writing. Will authorities be required to point them in the right direction?
  Lord Bassam of Brighton: The answer is yes.
  Lord Lucas: I am grateful to the Minister for his replies. I shall read them with great interest. However, I think the Government are missing the fundamental importance of this area; namely, the confidence required by an ordinary member of the public when dealing with local authorities or whoever, in knowing that that authority is under a duty to do its best to assist him, rather than, as has been our common experience—particularly for Members of the Committee opposite in their long years of Opposition—dealing with a source of information who is half the time doing his very best not to give any information or advice in a helpful way. If we wish to end that culture, or at least if we wish not to duplicate that culture with members of the public, which is extremely frustrating and off-putting for them, we need to have something firmer in the Bill.
  The noble Lord, Lord Richard, asked whether there is presently on the face of the Bill any mention of assistance as well as advice. At present there is not. It should be there in Clause 44(2)(a) or thereabouts. I hope my noble friend will agree that, given the advice that the Minister has given us, we need to give thought to how we can anchor that with some clarity on the face of the Bill in order to make absolutely obvious to a member of the public that a public authority is under a duty to assist him.
  Lord Mackay of Ardbrecknish: I am grateful to the Minister for his fairly long reply. I thought it was stronger on the textual analysis of my amendments than it was on actually addressing the principles behind my amendments, which were backed by the noble Lord, Lord Lester, and indeed by noble Lords behind him. I was not at all convinced by the argument about codes of practice. My memory is not so short that I cannot recall the phrase,
  "If pressed, promise a code of practice",
  and that keeps it out of the Bill.
  Lord Lucas: Under the Bill, will the noble Lord have to turn over his speaking notes so that we can see the advice on the matter?
  Lord Mackay of Ardbrecknish: I can tell that it says "resist" without even looking. It seems odd that the Government should set their mind against the proposition that we should have something on the Bill. I accept the textual analysis of my amendments. But I
  946
  remember being told by Members of the House, when I was leading for the government, that the idea of reasonableness in all the circumstances was well-known in legal circles and was not a problem for the courts to resolve and so on. So it seems to me that it will not be difficult to devise a clause which will meet the requests made by noble Lords.
  I shall not read them out, but perhaps I may commend to the Minister Section 13 of the Official Information Act 1982 in New Zealand; Section 15(3) of the Freedom of Information Act 1982 in Australia; and Section 6(2) of the Freedom of Information Act 1997 in Ireland. They all deal with this problem on the face of the Bill. Those of us who think that this should be on the face of the Bill will probably read what the Minister says, regroup and return with an amendment which even his textual analysis will not be able to knock down. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 29 not moved.]
  Schedule 1 [Public authorities]:
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 30:
  Page 44, line 11, leave out paragraph 6.
  The noble and learned Lord said: These are amendments which are good housekeeping in line with commitments made in another place that we would ensure that the list of public authorities is kept up to date. The amendments do not introduce any new policy, but we propose changes which fall into one of four categories.
  First, we have looked again at the way in which schools and further and higher education institutions are described in Part IV of Schedule 1. Schools have no legal identity and it is inappropriate to make them the subject of statutory obligations. Therefore, we have to change the reference to a reference to the governing body of the school or education institution. Information about institutions which do not have governing bodies, such as pupil referral units and maintained nursery schools, will be accessible through the local education authority directly responsible for such institutions. Similar arrangements are made in respect of schools and education institutions in Northern Ireland. Let me stress that this change does not reduce or limit the coverage of such bodies under the Bill. It simply ensures that the policy of including them within the scope of the legislation can have effect.
  Secondly, a number of bodies are added to the schedule. These are bodies which were not identified on earlier trawls. They include, among others, the General Medical Council, the General Dental Council, the Insurance Brokers' Registration Council and the London Transport Users' Committee.
  Thirdly, there are five entries to be deleted from the schedule. These are in respect of the entries relating to the police functions of the Port of London Authority, the Commonwealth Institute, the Local Government Commission for Wales and the Cardiff Bay Development Corporation, together with a duplicate entry for the Public Health Laboratory Service Board.

  947
  These deletions are necessary either because our further research has shown that the entry would not be appropriate because the status of the body has changed or the initial inclusion was made in error. The police function of the Port of London Authority, the Commonwealth Institute, and the Cardiff Bay Development are examples of the former, while the entry relating to the Local Government Commission for Wales is quite clearly a confusion with the Welsh local government boundary commission.
  Lord Roberts of Conwy: Amendment No. 30 deletes paragraph 6 of Schedule 1. Paragraph 6 states:
  "An Assembly subsidiary as defined by section 99(4) of the Government of Wales Act 1998".
  That in turn means any body corporate or other undertaking, of which the National Assembly is a parent, any trust of which the Assembly is a settlor and any charitable institution of which the Assembly is a founder. Will he explain why there has been that change of mind on the part of the Government? Will he also explain why in paragraph 5 of the schedule the National Assembly for Wales is listed as a public authority, but Clause 3(8) of the Bill states that,
  "'government department' includes the National Assembly for Wales"?
  Furthermore, Clause 81 states that "government department" does not include the National Assembly for Wales. Is it not clear that there is still a considerable amount of confusion in the Bill with regard to the position of the National Assembly and of other bodies related to it or subservient to it in Wales? Will the noble and learned Lord clarify the position?
  Lord Falconer of Thoroton: The Bill requires amendment in relation to the National Assembly for Wales. In group 10 on the groupings list, to which we shall come later, there is a whole series of amendments which deals with the noble Lord's point. Perhaps I may deal with his specific point then because there is a whole structure of amendments in relation to the position of the National Assembly for Wales.
  I indicated that the entry relating to the Local Government Commission for Wales is clearly a confusion for the Welsh Local Government Boundary Commission. As a result, an amendment has been made in that respect. The police function of the Port of London Authority has been transferred to the Port of Tilbury (London). This latter body will be consulted with a view to being brought into the scope by an order under Clause 4.
  Finally, the amendments make some minor changes to the names of bodies already listed. Taken together the amendments update the schedule and maintain its accuracy. The Government intend that Schedule 1 will be reviewed regularly and kept up to date. Clauses 3 and 6 make provision for any further updating to be done as and when necessary. I beg to move.
  Lord Cope of Berkeley: I am slightly hesitant to intervene in these debates as I did not take part in the proceedings at Second Reading. However, as the
  948
  Minister knows, my noble friend Lord Mackay of Ardbrecknish has left to go to Scotland in order to assist at the funeral of the right honourable gentleman Donald Dewar. Those who heard my noble friend the other day when the tributes were paid will fully realise why. I have therefore undertaken to take over his role for the remainder of the evening, however long that may prove to be.
  What interests me is that it takes 25 amendments to put right a straightforward list, one would have thought, of government bodies. Those of us who have become alarmed about the huge proliferation of government bodies are interested, although not surprised, to see that the Government initially did not know what bodies they were responsible for, got the names of some of them wrong and have had to correct them. It is a frighteningly long list when one looks at it from that point of view. But the fact that the Government got some of the names wrong is a cause for worry. It is a little like a company not knowing what subsidiaries it owns. That would be extremely worrying in the private sector.
  However, I certainly do not wish to stop the Government correcting the list. I note what the noble and learned Lord said about it having to be corrected in the future. That was an accurate prediction.
  Lord Falconer of Thoroton: I said "kept up to date". I beg to move.
  On Question, amendment agreed to.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 31 to 55:
  Page 45, line 29, at end insert—
  (" . The London Transport Users Committee.").
  Page 46, line 11, at end insert—
  (" . A Community Health Council established under section 20 of the National Health Service Act 1977.").
  Page 47, leave out lines 4 to 23 and insert—
  (" . The governing body of a maintained school, within the meaning of the School Standards and Framework Act 1998.
  .—(1) The governing body of—

  (a) an institution within the further education sector,

  (b) a university receiving financial support under section 65 of the Further and Higher Education Act 1992,

  (c) an institution conducted by a higher education corporation,

  (d) a designated institution for the purposes of Part II of the Further and Higher Education Act 1992 as defined by section 72(3) of that Act, or

  (e) any college, school, hall or other institution of a university which falls within paragraph (b).

  (2) In sub-paragraph (1)—

  (a) "governing body" is to be interpreted in accordance with subsection (1) of section 90 of the Further and Higher Education Act 1992 but without regard to subsection (2) of that section.

  (b) in paragraph (a), the reference to an institution within the further education sector is to be construed in accordance with section 91(3) of the Further and Higher Education Act 1992,

  (c) in paragraph (c), "higher education corporation" has the meaning given by section 90(1) of that Act, and

  949

  (d) in paragraph (e) "college" includes any institution in the nature of a college.").

  Page 47, leave out lines 25 to 36 and insert—
  (" .—(1) The managers of—

  (a) a controlled school, voluntary school or grant-maintained integrated school within the meaning of Article 2(2) of the Education and Libraries (Northern Ireland) Order 1986, or

  (b) a pupil referral unit as defined by Article 87(1) of the Education (Northern Ireland) Order 1998.

  (2) In sub-paragraph (1) "managers" has the meaning given by Article 2(2) of the Education and Libraries (Northern Ireland) Order 1986.
  .—(1) The governing body of—

  (a) a university receiving financial support under Article 30 of the Education and Libraries (Northern Ireland) Order 1993,

  (b) a college of education maintained in pursuance of arrangements under Article 66(1) or in respect of which grants are paid under Article 66(2) or (3) of the Education and Libraries (Northern Ireland) Order 1986, or

  (c) an institution of further education within the meaning of the Further Education (Northern Ireland) Order 1997.

  (2) In sub-paragraph (1) "governing body" has the meaning given by Article 30(3) of the Education and Libraries (Northern Ireland) Order 1993.
  .—(1) Any person providing further education to whom grants, loans or other payments are made under Article 5(1)(b) of the Further Education (Northern Ireland) Order 1997.").
  Page 48, line 9, leave out paragraph 73.
  Page 48, line 34, at end insert
  ("The Advisory Committee on Consumer Products and the Environment.").
  Page 49, leave out line 9.
  Page 49, line 15, at end insert—
  ("The Airborne Particles Expert Group.").
  Page 50, leave out line 7.
  Page 50, line 23, at end insert—
  ("The Commission for the New Towns.").
  Page 50, leave out line 43.
  Page 51, line 2, at end insert—
  ("The Council for Professions Supplementary to Medicine.").
  Page 51, leave out line 33.
  Page 51, line 48, at end insert—
  ("The General Chiropractic Council.
  The General Dental Council.
  The General Medical Council.
  The General Osteopathic Council.").
  Page 52, line 1, leave out ("Fund").
  Page 52, line 38, at end insert
  ("The Insurance Brokers Registration Council.").
  Page 53, leave out line 4.
  Page 53, leave out line 18.
  Page 54, leave out line 18.
  Page 54, line 21, leave out ("Relations").
  Page 54, line 33, at end insert—
  ("Resource: The Council for Museums, Libraries and Archives.").
  Page 55, line 38, at end insert—
  ("The United Kingdom Central Council for Nursing, Midwifery and Health Visiting.").
  950
  Page 56, line 36, at end insert—
  ("The Civil Service Commissioners for Northern Ireland.").
  Page 57, line 28, at end insert—
  ("The Northern Ireland Civil Service Appeal Board.").
  Page 58, line 5, at end insert—
  ("The social fund Commissioner appointed under Article 37 of the Social Security (Northern Ireland) Order 1998.").
  On Question, amendments agreed to.
  Schedule 1, as amended, agreed to.
  7.15 p.m.
  Clause 3 [Amendment of Schedule 1]:
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 56:
  Page 2, line 27, leave out ("may") and insert ("shall").
  The noble Lord said: In moving this amendment, I wish to speak also to Amendments Nos. 60, 64 and 65. Amendment No. 56 seeks to alter the word "may" to "shall". As we discussed in connection with the previous group of amendments, changes will undoubtedly be required to Schedule 1. In those circumstances, it is important that the Secretary of State should not merely have the option at his discretion to alter the list but should be under an obligation to alter the list. If it turns out that there is an error in the list, or a development takes place and a body is not added to the list for the time being, an individual seeking information may find that he is frustrated by the fact that the Secretary of State has not done so. If the Secretary of State is under an obligation, it is more likely to happen.
  Amendment No. 64 relates to the same power in Clause 4. The amendment seeks to make it a duty on the Secretary of State rather than an option to add any necessary bodies that come along. Amendment No. 65 seeks to make it a requirement that the Secretary of State should consult the commissioner and should allow not less than 20 working days for people to respond to such consultation. The Secretary of State is already under a duty to consult people to whom the order relates. As the Bill stands, the bodies have an infinite amount of time in which to respond and can delay doing so if they do not wish to fall foul of these provisions or to be enmeshed in these provisions too quickly. The 20 working days apply mainly to them. It would be an advantage if the commissioner were also consulted at the same time as the people to whom the order relates.
  Amendment No. 60 gives the Secretary of State the duty rather than the discretion to remove bodies when they have ceased to exist. The list is long enough. We do not want it cluttered up with bodies that should not be on it. We think that the Secretary of State should have a duty to do that and to keep the list up to date. I beg to move.
  Lord Falconer of Thoroton: Amendments Nos. 56 and 60 would have the effect of removing the Secretary of State's discretion in respect of making orders bringing bodies within the remit of the Bill. If they satisfied the criteria, they would have to be brought in. If we were to accept the amendments it would mean

  951
  that the Secretary of State would have to include in Schedule 1 bodies such as the security and intelligence agencies, even though it has been a matter of common agreement between the parties that it is necessary to exempt all information held by these agencies from the scope of the Bill in order to preserve their ability to carry out their duties effectively in the interests of the nation.
  The amendments could also lead to administrative nonsense. They take no account of the life-span of any body. it is possible that a body may come into being, perform its functions and be almost at the point of completing its task before the Secretary of State has had a chance to make an order. Nevertheless, under these amendments he would have to make an order which would have the effect of bringing the body within the scope of the Bill for only a very short period before it was wound up. Although it is a point to which I shall return later, I should perhaps note that under Amendment No. 64 the Secretary of State would then be under a duty to make a further order removing the entry in respect of that body from the list in Schedule 1.
  I want to be clear about the Government's intentions in respect of coverage under the Bill. We have produced a Bill which provides rights of access to information held by an astonishingly wide range of public sector bodies. It is right that the public should have that access. It is our intention that the normal and proper course of action would be that, whenever the Secretary of State becomes aware of the creation of a new public authority, he should seek to ensure that it is brought in as quickly as he reasonably can. In some cases that would be achieved through the primary legislation setting up the new body. In other cases there will be no need to take action because it will be covered by one of the generic descriptions in Parts I to V of Schedule 1. In some instances the Secretary of State would need to use the order-making powers in Clauses 3 and 4, but as the lists in Parts VI and VII of Schedule 1 show, many of the bodies which might be brought in under the order-making power of Clause 3 may be relatively or absolutely small bodies and offices. Many others which will fall to be considered under the Clause 3 powers may be working groups or task forces set up with a limited lifespan or having no real independent character from their parent or sponsoring department. Comparable considerations are likely to apply in the exercise of the Clause 4 powers.
  We believe it is sensible that in those circumstances the Secretary of State should have some discretion to consider the full facts and implications of listing for FoI purposes before proceeding to make an order—not so that information can be withheld from the public, because in almost every case it is likely that the information will be available from another authority, but because it would be irresponsible to designate all those meeting the broad criteria as public authorities without regard to other relevant considerations.
  These amendments could impact disproportionately in particular on those authorities which are to be brought within the scope of the order-making power in Clause 4. The criteria under Clause 4 are
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  relatively broadly drawn and have at the margins some areas for debate as to whether a body is performing public functions. A statutary requirement to include all bodies ultimately held by a court to fulfil the criteria could well lead to the Bill's coverage extending far into what would generally be regarded as purely private areas. A discretion on the part of the Secretary of State would avoid that risk.
  Furthermore, the amendment would effectively negate the requirement at Clause 4(3), which requires the Secretary of State to consult any person in respect of whom he proposes to make an order. These amendments would require the Secretary of State to make the order irrespective of the outcome of the consultation. That would be an obvious nonsense.
  Amendment No. 64 would require the Secretary of State by order, to remove the entry in Part VI or Part VII of Schedule 1 which relates to any body which no longer meets the criteria to be designated as a public authority by virtue of the conditions set out in Clause 3. I can understand that this amendment would be argued as complementary to those we have just looked at and in effect no more than a reassurance that the lists at Schedule 1 would all be kept up to date and that no body would be inappropriately required to fulfil the duties of a designated public authority for the purposes of this Bill.
  The order-making power in Clause 3(5) is necessary so that the lists may be routinely updated to remove dead wood: that is, bodies which no longer exist or no longer meet the necessary criteria for listing as public authorities. However, in truth this amendment adds nothing to that purpose. No amendment is required to ensure that such dead wood is removed in order to be satisfied that the scope of the Bill is not exceeded because of a public authority's changing circumstances. The Bill already achieves exactly that form of housekeeping.
  Clause 3(4) ensures that Parts VI and VII are self-regulating by providing that a body or office ceases to be a public authority by virtue of its inclusion in the schedule if it ceases to satisfy the conditions in subsections (2) or (3) of that clause. Therefore it is quite unnecessary to provide a relevant duty for the Secretary of State. The Government recognise the importance of ensuring the widest possible coverage of public service functions within this Bill, but placing inflexible duties on the Secretary of State in the way these amendments propose would be wrong. I would urge the noble Lord to withdraw these three amendments.
  If I may now turn to Amendment No. 65, it would have the effect of requiring the Secretary of State to consult the commissioner in every case before making an order under Clause 4. I can understand the noble Lord's concern to ensure that Ministers make a decision to designate a person or body under the powers in Clause 4 only after the most careful consideration. However, I wonder just how the noble Lord could conclude that placing a duty on the Secretary of State to consult the commissioner in each and every case would assist in delivering that outcome.

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  It may be that in some cases the commissioner has detailed knowledge of the kinds of information which a body holds and will have taken a view as to whether and to what extent that body ought properly to be considered to be exercising functions of a public nature. In such circumstances I accept there would be value in consulting her but in many instances there is no reason to believe that the commissioner will have any knowledge of the relevant circumstances. In other cases there might, and would, be no dispute as to whether the body should be designated for FoI purposes and therefore little would be gained by imposing an obligation to consult where the result is obvious and the information commissioner may have nothing to add.
  I cannot see what is gained by quoting this duty. That does not mean that the Secretary of State ought never to consult the commissioner. I have set out circumstances in which that might be sensible but an across-the-board duty does not look at all sensible.
  I turn now to the second part of the amendment which would introduce a requirement to allow 20 working days for any response to the statutory consultation required by Clause 4(3) before any order to designate a public authority can be made. I understand the noble Lord's concern not to see organisations bounced into responding to a consultation, but I can assure him that the Government have no desire unnecessarily to increase the burden on private sector organisations and that we shall not do so in this respect either.
  As your Lordships will be aware, government guidelines already provide that a reasonable period shall be allowed for responses to any public consultation exercise. Of course we will need to be flexible in how we apply these guidelines, but as a general principle we shall look to ensure that the normal guidelines of a minimum eight weeks' response timetable are followed for consultations in respect of any proposal to make an order under Clause 4 of the Bill. I would suggest that is a more appropriate way of dealing with a particular problem and the question of representations than setting out a statutary timetable. I would therefore urge noble Lords to withdraw their amendments.
  Lord Norton of Louth: Before the noble Lord sits down, on Amendment No. 56 I understand completely the argument he is advancing against inserting the word "shall". I also appreciate that in effect what he is doing is reading into the record that the expectation is that the Secretary of State shall normally schedule a body but will not do so in all circumstances, for the reasons given. Would the noble and learned Lord be amenable if an amendment were proposed which provided a form of words placing the onus on the Secretary of State to do that without making it a requirement, rather than just leaving it on the face of the Bill, where it is simply at the Minister's discretion,
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  in a way through shifting it in the direction the Minister has clearly indicated he would expect the Secretary of State to go?
  Lord Falconer of Thoroton: I do not think that would necessarily be appropriate because I have indicated what the reasons are. I have done it in some detail precisely for the reasons indicated by the noble Lord. Flexibility, I believe, is quite important as long as one sets out the intention, as I have done, of creating discretion. If one does it in a different way one is in a sense unnecessarily and possibly damagingly limiting the discretion. I think the way we have proposed is the most effective way of achieving the purpose.
  Lord Cope of Berkeley: I have some sympathy with what the noble and learned Lord said although some points did slightly alarm me. There is no intention on my part or that of my noble friend to include the security services in the provisions of this Bill. I must admit that I thought that Clauses 21, 22 and so on were sufficient to ensure that and therefore that this amendment did not go against that principle. Of course I may be wrong about that.
  I was slightly alarmed by the idea that government bodies might be born, live and die without ever being in existence long enough to get enmeshed in these provisions. That does seem to suggest a huge proliferation of government bodies of an extremely short-term nature and also that the Secretary of State does not have in mind to be all that nippy in inserting new bodies into this list.
  Nevertheless, as my noble friend Lord Norton indicated, the Minister has given us food for thought on these matters. We shall duly—I shall not carry the analogy too far—think about them. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Bach: I beg to move that the House do now resume. In moving this Motion, I suggest that we return to the Committee stage on the Bill not before half past eight.
  Moved accordingly, and, on Question, Motion agreed to.
  House resumed.

Housing
7.30 p.m.
Baroness Maddock Baroness Maddock rose to ask Her Majesty's Government what steps they propose to take to implement the proposals in the Housing Green Paper.
The noble Baroness said: My Lords, I am pleased to have this opportunity to question the Government on the housing proposals set out in the Green Paper. We have now had some time to consider our responses and we are also in the run-up to the Queen's Speech, which will detail the legislation in the next Session.
I recognise that the Minister will not be giving anything away, but it is widely thought by many in the housing world that a housing Bill will be introduced in the next Session. I do hope that the Government take the opportunity to respond to what has been said by those with expertise and an interest in housing matters since the Green Paper was published.
I begin on a positive note. We on these Benches welcome the attempt made in the Green Paper to look at housing in a wide context as well as to give a fairly comprehensive description of the many problems that exist. We welcome the recognition of the woeful condition of large sectors of our housing stock. We welcome, also, the attempt to speed up home sales; the commitment made to reform leasehold; the wider definition of homelessness, long overdue and likely to strengthen the safety net for homeless people; and the introduction of a licensing scheme for houses in multiple occupation. The last two points were manifesto commitments made by the Labour Party at the general election. I served with the present housing Minister on a committee which considered the last housing Bill in another place. When he was in opposition he supported such proposals. For those reasons, I hope that the Minister will be able to give a commitment that, should a housing Bill be introduced, these matters will be included.
The emphasis placed on sustainability in the Green Paper is welcome; first, through planning for mixed communities as a path to sustainable communities. However, I am concerned about whether the Government recognise the full extent of the problems that surround the delivery of regeneration schemes.
Secondly, the paper recognises the importance of energy efficiency improvement and its role in tackling fuel poverty. However, the strengthening of building regulations in terms of energy and water conservation would, I believe, ensure faster progress. The lowering of VAT on energy-saving materials to below 5 per cent and a target of half a million homes to be insulated every year would give more teeth to the good intentions set out in the paper.
This leads me to concerns that the Green Paper sets few targets, in particular the level of resources needed to provide new affordable homes and to tackle the level of disrepair. My noble friends Lord Oakeshott of Seagrove Bay and Lord Greaves will address those issues in more detail.
The Government have recognised what needs to be done to provide affordable housing in rural areas, a topic on which my noble friend Lady Miller of Chilthorne Domer will have more to say later in the debate.
While welcoming the recognition in the Green Paper of the important strategic role played by local authorities in housing provision, we on these Benches have some concerns. First, despite the increased powers conferred on local authorities in the recent Local Government Act, the Green Paper is much more prescriptive as regards what authorities may or may not do in the field of housing.
Secondly, many proposals seem to comprise a wish list that fails to recognise the reality of the financial and legal difficulties faced by local authorities as they try to deliver wide ranging housing strategies for their areas. The paper appears to have been written from the perspective of large urban authorities.
The Government recognise the need for local authority planning and housing departments to work closely together, but they seem reluctant to give them the tools to make a difference. Small local authorities in particular do not have the means, especially the financial means, to fight developers in the courts; furthermore the law is not on their side.
I shall touch on the proposals in the Green Paper on local authority stock transfer. Why are the Government not prepared to provide a level playing field in which housing associations and councils can borrow on equal terms? Tenants could then choose. As my honourable friend in another place, Don Foster, the Member for Bath, said, "At present, tenants can choose anything they like as long as they say 'yes' to transfer".
I hope that the Government can respond to some of the concerns expressed since the publication of the paper. The Government state that they want to see a healthy private rented sector. The response of the Royal Institution of Chartered Surveyors was that,
"firm proposals are few and far between".
and
"geared more towards small investors than institutional funds".
I hope that the Minister can assure us that the Government have developed some new thinking.
As regards the licensing of houses in multiple occupation, organisations such as Shelter which daily come face to face with the reality of some of the most vulnerable in our society—those living in our worst privately rented dwellings—continue to remind the Government of the urgency of the need to raise standards. However, private landlords and letting organisations have expressed the view that such licensing would reduce lettings. I hope that the Minister will have an opportunity to emphasise that regulation is not about making life for landlords more difficult; it concerns saving lives. Many people die in fires. The risk of that happening is far greater in the private rented sector. Furthermore, year by year more people die of carbon monoxide poisoning. I hope that the Minister will be able to emphasise that licensing means ensuring that houses in multiple occupation meet health and safety standards.
I hope that the Government can also give an assurance that, when they introduce the new system, they will keep the fees for obtaining licences as low as possible and ensure that local authorities have in place the resources to administer any new system efficiently. Furthermore, they must ensure that financial assistance is made available to responsible landlords who wish to improve their properties through renovation grants and tax allowances. Only then will responsible landlords see the benefits of licensing.
I turn briefly to the question of rents. I seek reassurance from the Minister that the Government have listened carefully to the concerns expressed about the implications of retail price index-only rent increases for social landlords. The Royal Institution of Chartered Surveyors, as well as many social landlords, believe that the Government have not fully considered the effects of this. At present, the building cost index is running at a higher level than RPI, as are average wage increases. To make their finances and business plans add up, registered social landlords need to be able to retain their staff, ensure that they have good building maintenance schedules and convince financiers to continue to lend them money. I hope that the Minister will be able to reassure us that these matters will be given careful consideration.
Finally, although we have so little time in which to cover such a large issue, I should like to urge the Government to remove the single room rent restriction on housing benefit. This has been strongly recommended by many organisations, including a committee in another place. When examining housing benefit, will the Government please not fight shy of reforming it? Such reform is long overdue and the system desperately needs simplification.
Perhaps I may also urge the Government to remove the huge difference in VAT between new build and that on renovation. Again, many organisations have called for this. Will the Government also consider changing the full council tax charge levied on empty properties and do more to ensure that local authorities deliver empty property strategies?
I have mentioned the areas in which the Government have expressed many good intentions. I hope that the Minister can assure us that they are serious about delivering them.
7.40 p.m.
Baroness Dean of Thornton-le-Fylde: My Lords, not for the first time, I thank the noble Baroness, Lady Maddock, for introducing a debate on housing.
I should declare an interest as chair of the Housing Corporation. We welcome the Green Paper. The last time we had a short debate about this subject housing did not appear to be at the top of the political agenda. But this year, with a wide-ranging housing Bill coupled with the outcome of the comprehensive spending review which will increase the Housing Corporation's budget by £2.5 billion over three years, we are back at the top of the political agenda. Given the living conditions of many people up and down the country, that is where we should be.
It is good to talk about the Green Paper because there is much good in it. Choice for tenants is extremely important—not only choice about where they live and what they live in but about their role, influence and empowerment in their sector. The Green Paper provides for stock transfers where tenants want them. We are pleased that the Green Paper provides that stock is not automatically transferred from one monopoly to another but that tenants have a real choice, whether they are housed in tenant-managed
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organisations, co-operatives or other kinds of structures. If the projections in the Green Paper are correct, within the next five years something like 10 per cent of the total housing stock of the country will be regulated by the Housing Corporation
We also welcome the requirement for improved performance of service to tenants. That puts pressure on us as a corporation to make sure that we are up to the job of ensuring the delivery of improved standards of performance. It also places emphasis on the quality of the fabric of housing.
The noble Baroness, Lady Maddock, referred to rents. Certainly the Green Paper provides various options for change. I think everyone in the sector welcomes the opportunity to look at a more coherent, fairer policy. However, we recognise that it will be a real challenge, not only to deliver it but to deliver it in a way which is workable and sustainable over the coming years and which ensures that the registered social landlord sector is viable and able to provide a good service to its tenants.
After looking carefully at the outcome of the possible changes, we welcome the requirement for targets not only to be met but to be published and monitored regularly. We welcome the impositions it will put on us as a housing corporation. For the first time ever we published our evidence and our response to the Government on the Green Paper. One wonders why that has not happened in the past. I can assure the House that it will certainly happen on every occasion in future.
The Question asks what steps the Government propose to take to implement the proposals. There is much in the Green Paper that does not require statutory regulation or parliamentary time. I hope that the department and the Minister will be able to give an assurance that such proposals will not be held back; that we can move forward on them. Where necessary, parliamentary time should be found to bring forward the necessary changes as soon as is sensibly possible.
I welcome the debate. We are indebted to the noble Baroness for introducing it.
7.44 p.m.
The Earl of Listowel: My Lords, I join with Barnado's, Centrepoint and Shelter in welcoming much of what the Green Paper offers for homeless single young people and for homeless families. While there are lacunae, many of the proposals, if enacted, would make a great difference to the lives of the most vulnerable in our society. Consequently, I join with the noble Baroness, Lady Maddock, in urging the Government to put something on the statute book soon, in the next Queen's Speech if possible.
The Government's SEU report on homelessness states that between a quarter and a third of rough sleepers have been looked after by local authorities as children; that around a half of rough sleepers have been in prison or a remand centre at some time. Research in prisons shows that 40 per cent of prisoners are homeless on release; and between one quarter and one fifth of rough sleepers have been in the services at

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some stage. I therefore warmly welcome the Government's proposal to extend priority housing need to those who have an institutional background.
As treasurer of the all-party parliamentary groups for maternity and children, I am particularly concerned about the conditions of families living in temporary accommodation. The mothers of such families tell me how depressed they are. When one listens to their stories and notes their anxieties as they speak, one sees that they are indeed deeply troubled by their situation. Shelter informs me that the numbers in bed and breakfast have increased by 100 per cent in the past two years. There are more than 6,000 households in bed and breakfast accommodation in London alone.
It is becoming more and more clear that the quality of the relationship between mother and child in the first year of infancy shapes the rest of that child's existence. A depressed, anxious mother is inhibited in her love for her child. The infant will also inevitably share in her anxiety; he internalises this anxiety. As an adult he will be more prone to worry. Those challenges we all face will be greater for him simply because he is innately more fearful of them. Young people who have grown up homeless may well face more knocks than most of us receive, yet their poor start makes them less able to bounce back and to persevere.
A mother told me that the shared lavatory in her accommodation is unhygienic. She complained to her landlord and he told her that there was nothing he could do if the other tenants chose to leave their shared facilities in that condition. This mother tells me that she will not leave her child alone in her room, so she has to take him with her to this unhygienic bathroom. When I hear this, I am concerned for the physical health of child and mother. I am also concerned for the distress of that mother—who is helpless to improve her environment and to do what any of us would take for granted in terms of improving our facilities—and how her concern will impinge upon her child.
As I know that her experience is a common one which is shared by many of the thousands of families living in multiple occupation, I warmly welcome the Government's manifesto commitment—repeated in the Green Paper—to licence HMOs. Mothers in HMOs have many other pressures on them. They may live a distance from a kitchen; they may have to walk up stairs, perhaps carrying both a child and hot food. They may well live in overcrowded conditions. They have enough on their plates without having to worry about fire safety and the sanitary condition of their accommodation.
The Audit Commission suggested that only 56 per cent of local authorities in England and Wales administered benefits efficiently, leaving claimants with worrying rent arrears and the risk of eviction. This is another common complaint of mothers.
With the Sure Start plan to support families with young children and with the Government's targets for reducing child poverty, surely it makes sense to improve the conditions of the most vulnerable
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families. I look forward to the Minister's response and to any hint he can give that licensing of HMOs is fast approaching.
7.49 p.m.
Lord Oakeshott of Seagrove Bay: My Lords, I follow the wide-ranging speech of my noble friend Lady Maddock by concentrating on one main point. Value added tax, as it is now imposed, is pushing far too many of our scarce building resources into new development, with all the costs to society—of which we had another example with the flooding in southeast England last week—instead of helping the renovation, extension and conversion of buildings in existing settlements.
New house building incurs no VAT, but refurbishment and conversion of existing residential properties attracts the full VAT rate of 17.5 per cent. It makes a nonsense of the Government's claims to be encouraging sustainability in housing when the big developers pay nothing on their new estates. By contrast, two teachers struggling to buy their own home, for example, have to pay 17.5 per cent on the extension if they build another bedroom when they have children, as does a private landlord in a depressed inner-city area converting a run-down house into modern flats for nurses or young people. It is madness to be eating up more and more of our countryside with new development while much of the older housing stock in our cities is not merely being allowed to rot, but is being encouraged to rot by the VAT system. How "un-green" can you get?
So it is no surprise that the Minister's noble friend Lord Rogers of Riverside, in his Urban Task Force report last year, made the harmonisation of VAT rates on new building and conversions one of his key recommendations. It is no surprise that a Select Committee in another place, referring to housing PPG3 last July went so far as to call the present VAT arrangements "perverse financial incentives". The committee said that they,
"worked against Government policy and should be re-examined as a matter of urgency."
It is no surprise that the Royal Institution of Chartered Surveyors has said in response to the Green Paper that it strongly recommends revisions to value added tax. It believes that the relative treatment of new build and refurbishment,
"is irrational and does not assist in the wider sustainability agenda".
Finally, it was no surprise to find only last week the new chairman of English Heritage, Sir Neil Cossons, summing up the VAT system on home improvements in one simple word: he called it "lunacy". He said:
"This is the single issue that has come through unanimously from those people whom we have consulted on the built environment. If you have a government that actually believes in recycling our urban areas into active areas for the population—recycling historic buildings—that simple change would provide a symbolic and financial incentive".
These are compelling and widely held arguments from distinguished experts right across the spectrum. They are reinforced by the basic presumption of

961
economics against a tax differential which distorts consumer choice and allocation of resources. But I am afraid that, in the Minister's reply to the debate in this House on 4th April, it was apparently all a matter for the Chancellor of the Exchequer.
Of course, the final decision on varying VAT rates is a matter for the Chancellor. But please will the Minister, this time at least, share with us his department's views of the implication for housing policy in the present regime and what he would see as the pros and cons of what is being proposed.
A change could easily be revenue neutral, if the VAT rate on new building, refurbishment and extensions were equalised at, say, 5 per cent. We on these Benches should prefer the distortion to be removed by the abolition of VAT on housing refurbishment and conversion work altogether. And there is, incidentally, ample scope for recouping lost revenue in other ways in housing; for example, by ending the present unfair concession to second home owners like myself who have to pay only 50 per cent of the normal rate of council tax.
The key point is that rates should be equalised, or harmonised. Can we please have a housing argument and a housing assessment, given the wide concern in so many areas? I hope that, from a housing perspective, the Minister will have some sympathy with the arguments that I have put forward. VAT reform is needed now to boost sustainable housing and to protect our environment.
7.54 p.m.
Lord Graham of Edmonton: My Lords, first, perhaps I may congratulate the noble Baroness, Lady Maddock, on reassembling the repertory company of Members in this House who take keen interest in housing. I also offer hearty congratulations to the Government and to the Ministers who represent them in this House on this subject on being bold and imaginative in producing this housing policy.
The key aim of the housing Green Paper is that there should be a decent home for all. While that is a primary objective, it is vital that the provision of those homes is sustainable in the long term. Since the 1970s we have seen repeated attempts to regenerate public sector housing, and most have failed. They have failed because no regeneration approach has yet been based on giving power, resources and responsibility to the communities themselves. The Prime Minister, in his foreword to the Social Exclusion Unit's publication, Bringing Britain Together: a national strategy for neighbourhood renewal, clearly recognised that, saying that,
"too much has been imposed from above, when experience shows that success depends on communities themselves having the power and taking the responsibility to make things better".
We agree that the way forward is to find ways to transfer power and responsibility to communities.
There may be a variety of methods of transferring power, but research and experience have shown that the housing co-operative model is a very effective way of devolving power, and yet there has been very limited
962
government support for housing co-operatives since the mid-1980s. Consequently, only a tiny fraction of social housing in England and Wales is co-operatively controlled. In Scotland, however, with significant support for tenant control, over half of the housing association sector is tenant controlled, and half of that is co-operative.
This strategy should take on board the key lessons learnt from the housing co-operative sector. Housing co-cops have been one of the most successful and under-valued forms of transferring power. They have been sustainable community organisations, promoting social inclusion and capacity building for as long as 25 years in some cases. Their message of self-help and people taking pride in and responsibility for their homes and environment is precisely what is needed to transform society. All the available research indicates the effectiveness of housing co-ops in comparison with other forms of housing provision. The most notable piece of research in this area has been the DoE-commissioned report, Tenants In Control: an evaluation of tenant-led housing management solutions, carried out by Price Waterhouse. It concluded that,
"Most … co-ops outperformed their Local Authority and Housing Association counterparts and provided more efficient housing management services with usually better value for money … Tenant Management Organisations delivered wider non-quantifiable social and community benefits … The most effective organisations were those whose members had greatest control over their housing management, finances and environment".
The clear message of the report is that tenant-controlled organisations are better value for money at the same time as providing social and community benefits, and that the organisations that had the most control—ownership housing co-ops—were the most successful. That should have a major effect on housing policy.
I conclude by asking this of my noble friend the Minister—who is a good friend in terms of the needs demonstrated. There is in circulation for consultation a draft commonhold and leasehold reform Bill. It provides for groups of tenants to have the option of forming a limited company. However, I am advised that there is no provision in the Bill for tenants to opt, under the stock transfer route, for a co-operative structure rather than a company structure to become a commonhold association. Why not?
I welcome the Government's intention to provide a wide choice to tenants. That was not provided in earlier stock transfer guidelines. Will my noble friend the Minister understand that, if the co-operative option is not provided for, there will be deep disappointment within the co-operative movement?
Finally, I congratulate my noble friend Lady Dean and the Housing Corporation, which has taken a great interest in this matter. There has been a change of culture within the Housing Corporation and it is now sympathetic to the options. Its report for September 2000 lists the membership of the national advisory group on resident controlled housing. Among those on the list, I see the names of Ron Batholomew, Nic Bliss, David Dickman, Catherine Meredith and David

963
Rodgers—all good co-operators who are helping the Minister and the Housing Corporation to do their job. I wish the Government well in their plans to improve housing for the people of this country.
8 p.m.
Lord Greaves: My Lords, I, too, congratulate my noble friend on initiating this important debate. I should like to speak about the housing in two small towns that I know very well in north-east Lancashire—Nelson and Colne in the borough of Pendle. I do not do so as any special pleading for them; it is simply that I believe them to be typical of much of the north of England.
We are talking about large areas of terraced housing built before 1914, most of which is over 100 years old. It is all very cheap housing and is to be found in Band A for council tax purposes. Indeed, most of it was, and still is, owner occupied. Thirty years ago most of this housing had no inside bathroom or any other such facilities; for example, no lavatories. Many had no hot water and just one open fire. It was pretty grim, but people lived in what were called "little palaces". There is a speciality of north-east Lancashire called the "tippler" toilet, about which I shall not go into great detail. However, I can tell noble Lords that it was colloquially known as the "longdrop bog". If any noble Lord wants to know what it was all about, I shall be happy to tell him after the debate.
We had a programme to eliminate the tippler toilets and install WCs. Along with many other transformations in the 1970s and 1980s, those areas were turned into places that people would not have recognised: modern amenities were put in and the housing was transformed. Indeed, in many cases the environment was transformed, although perhaps not as much as we might have wanted. Slum landlords were often bought out and the houses turned into social housing. In general, there was a very successful application of what are now known as "public/private partnerships"—a phrase that we did not use at the time. However, it involved a substantial input of public money.
In the past 15 years the situation has again been in decline; it has become worse. There are four basic reasons for this: first, the effects on such property of deregulation of rents. In effect, there has been asset stripping of whole streets and a great expansion of the private rented sector. For example, in 1990 the local authority gave £1 million in housing benefit rent allowances—just the rent allowance part of housing benefit—but this year it will be £12 million. I believe that that indicates the extent of the expansion.
The second factor is the virtual abolition of grants. This has made it impossible for people who are not well off to put money into their own homes. The abolition of housing action areas and the much tighter and inflexible rules on renewal areas are matters that the Green Paper tackles as regards the size of them. They are designed for big cities, not for much more intricate, small towns.
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Thirdly, there are the cuts in finance. Again, I shall illustrate the effects by citing my own authority in Pendle where I live. It is typical. At the peak, the private sector housing renovation spending of the authority was over £3 million. Last year it was £2.3 million, so, allowing for inflation, that is perhaps a cut of two-thirds. This year, because of the present Government's wish to transfer funding to council housing, the authority expects the figure to be £1.5 million, despite the fact that it was encouraged by the Government Office in the North-West to declare a new housing action area. That is simply not acceptable.
Finally, I welcome many of the policies in the Green Paper, especially the increased flexibility on grants and renewal areas, but they will not work unless the funding is available. The result is that the physical fabric of whole areas—that is, street after street—is slowly rotting. There is nothing that the local authorities or anyone else can do about it because the funding is not there. The social fabric is slowly disintegrating, with the great increase in private rented accommodation and tenants who come and go very quickly. The economic foundation of these areas is collapsing. Houses which 10 or 15 years ago sold for £45,000 are selling for £35,000; those sold for £25,000 are selling for £15,000; and those that sold for £10,000 or £12,000 are now being abandoned.
The main problem is money. The Minister may know that his ministerial colleague Nick Raynsford was in Nelson and Colne this very afternoon. I hope that he will return and give the same message that I am offering to your Lordships this evening.
8.5 p.m.
Lord Smith of Leigh: My Lords, in declaring my interest as leader of a local authority, I also welcome the Green Paper from the local authority perspective. I welcome two aspects in particular. The first, as the noble Baroness, Lady Maddock, said, is its holistic approach. It actually recognises that there is not just housing in one area—it is not public or private, nor is it tenant or owner occupied. It involves the wider social agenda. As the noble Lord. Lord Greaves, would say, the key issue is not only the condition of houses; it is also the social environment in which people live. Community safety is the one factor that many people regard as very important. It is the number one priority for tenants in my area of Wigan. You could draw up a map of social exclusion for Wigan that would almost fit like a glove with areas of public housing. We need to tackle those issues together.
I certainly welcome the increased role for local authorities. I do not find it quite as inhibiting as perhaps some noble Lords opposite. We must recognise the great variation in housing need. While listening to the noble Lord, Lord Greaves, I recognised some of those symptoms from northern areas, especially parts of east Manchester and other areas where there are examples of what is really over-supply of poor quality housing. That creates the basic problem. Indeed, you have only to contrast that with

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the issues that arise in the capital, where obviously there is a shortage of housing and consequently high prices and high rents.
I must disagree with the noble Lord, Lord Greaves, about housing renewal areas. If the noble Lord would like examples of how they can be successful, I invite him to come to Wigan. We can show him examples where, while concentrating on an area, we have been able to put in some social fabric as well as delivering housing improvement. Indeed, that can result in a real change in housing conditions.
I turn now to the role of council houses. I was pleased to see that the Deputy Prime Minister stated in another place that he believes that there is a continuing role for such housing. These houses are often held up as being a very unpopular choice for many people. But that is certainly not the case. I can give your Lordships an example. Only last Thursday at a tenants' meeting I met someone who had been a Wigan tenant for 62 years. When she started she paid 7 shillings and 10 pence, which I believe is 39p in today's money. In many areas people look to the council as the main provider of social housing. We are happy to do that in collaboration with housing associations and with housing co-operatives. But the council is still regarded as being the organisation to which people apply if they need social housing.
I was very pleased to see the part of the Green Paper that brings in the arm's length companies—an alternative to the stock transfer. I know that the Government are working hard to ensure that this becomes a reality. Of course, there is money behind that initiative in the Comprehensive Spending Review. I only hope that the hurdles that will be raised will not prove too difficult for the authorities.
Choice in housing is a desirable objective but it will always be restricted by income, as is the case with almost everything. When I was ennobled someone asked me whether I would buy a property in London. I replied, "I think not; income does not permit". We need to ensure that we involve tenants. That is the way that we shall give them choice to do the things that my noble friend Lord Graham mentioned. That can be done not only in housing co-operatives but also in local authority housing. We must make tenants feel that they have a proper role to play in managing decisions about their lives.
I was pleased to hear the Government announce last week the neighbourhood renewal programme, which is designed to tackle these wider issues and to enable local authorities to put money into problem areas on housing estates. I hope that the Government will ensure that there is a holistic approach to housing from other departments, not just the DETR. In problem areas schools are probably the only form of community facility available. We must be sensitive in examining the future of schools to ensure that we are not denuding such areas of that facility.
We must also bear in mind the other considerations mentioned by the noble Baroness, Lady Maddock, in terms of insulation, security, housing schemes and so on. Where such schemes exist, we must ensure that we
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involve local people and create job opportunities in the area. Good housing policy can improve physical environments. It can also improve the community. However, there is an even greater challenge; namely, that of improving the image. Once an area has acquired a bad image, it has to be turned round. We must find ways to ensure that we can make people understand that everyone recognises change—but people should not be labelled because they come from a particular area.
8.9 p.m.
Baroness Miller of Chilthorne Domer: My Lords, I warmly congratulate my noble friend Lady Maddock on securing this debate. I am most grateful to her for doing so because I should like to highlight a group that seems to be invisible and completely unrecognised by this Green Paper. My noble friend said that the paper was written from the perspective of large, urban authorities. I believe that to be true for this group. The group about which I am talking comprises rural young people who are not recognised as homeless.
The difference between urban and rural homelessness is that the rural homeless are not really seen. They are not under arches and in doorways. They are not in hostels because there are so few hostels. Young rural homeless usually end up on their friends' floors. That might be acceptable for a couple of weeks or four or five weeks, but I know that that extends into months and years. Because they are on someone's floor they are not seen as in need.
I do not believe that this Green Paper in which there are a number of things to welcome quite fulfils its subtitle which says "A decent home for all". It does go on to talk about housing. A home is somewhere that is one's own, even if only one room. Sharing someone's floor space does not, I believe, qualify as a home.
Statistics show that homeless people in rural areas are local people. This has been proved time and again to be thecase. I quote a couple of examples of the YWCA in Truro who looked at the cases of 40 women whom they re-housed in two years, and only one of them was not a local person. In Leicestershire the Lutterworth Homelessness Project found that 88 per cent of the persons they housed were from that local district. The fact is that people in rural areas want to stay in their area and when they become homeless it is very important that they still have the support system of friends, the roots they have in that area and, if they have a job that they are able to continue with it.
This group is badly in need of the sort of integrated programme the Government are talking about for vulnerable people and homeless people. The Government could act in a number of areas that would be very helpful. They could act particularly on the issue of the single room rent. Most houses in rural areas, even those called affordable, are not affordable now for anyone below the age of 25 years unless they are on an exceptional salary scale. They could make sure that 16 and 17 year olds are seen as priority homeless. In many other ways—and I think the Government recognise this—they are adults. They need to be regarded as such in respect of their homes.

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There is still a lack of real or enough incentives for people to take in lodgers although the tax break has helped that. There needs to be a support mechanism for those peoplewilling to take in lodgers. Some areas have bond schemes to help young people over that huge hiccup of finding a deposit and the first month's rent, very often completely impossible to find. I think that bond schemes ought to apply to all areas.
Young people often need more than bricks and mortar. They do need support. Rural Foyer Schemes have done a good job but there is a strong case for a number of units with just occasional support, not with the intensity of training that a Foyer requires but the occasional support that someone of 17 or 18 badly needs.
There are the inadequacies of the RSL rent restrictions on which we hope the Government will take some action.
The noble Lord, Lord Smith, recognised the need for money. As was mentioned at the beginning, at the moment local authorities have to find a number of ways through the maze. They have either to undertake stock transfers or bidding. Should it not be reasonable for local authorities to borrow the money for improving council housing stock?
8.16 p.m.
Lord Dixon-Smith: Like other noble Lords, I am also very pleased that the noble Lady, Baroness Maddock, was successful in having this debate this evening. The question of housing has been around for a very long time. I have no doubt that we will continue to have housing debates into the future whatever happens. The noble Lord, Lord Graham of Edmonton, mentioned 30 years, and I remember when national building targets were a matter of intense interest in the late 1950s and the early 1960s. This is a constant problem.
I want to look at this subject from a slightly different point of view and to pick a theme that a number of noble Lords have already mentioned. When I look at the housing situation in the country I almost see two separate countries. It would be wrong to categorise them as the North, the West, the South and the East. That description makes the simple contrast but it is wrong because within both those areas there are areas of prosperity and success and areas of depression. To characterise the two countries, there is an area where there is a crude surplus of housing, plenty of industrial land available, costs are low, demand is low and there is a high proportion of what would now beregarded as sub-standard housing. On the other hand, one has a large section of the country where there is a chronic shortage of housing, high costs, shortage of industrial brown field sites, high demand and there is still sub-standard housing in many instances.
I want to pick up particularly the point made by the noble Lord, Lord Oakeshott of Seagrove Bay, about VAT. It is a relatively recent problem because VAT has not been around for that many years, and at the higher rates that it is today which has made this
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differential so dramatic in its effect for the last decade. The fact of the matter is that if one has a 17.5 per cent disincentive in renovation building works, it is quite difficult for any financial person, developer or anyone else to climb over that barrier. That barrier has to be climbed.
Although I cannot expect the Minister in his response to tell us what the noble and learned Lord the Lord Chancellor might be thinking in this area, I would plead with him to agree to argue the case for this change. If rumours in the press are anything to go by the noble and learned Lord the Lord Chancellor is looking more at adjusting stamp duty rates for urban development, that is all very nice and fine but an adjustment in a rate of tax which, at its highest level, is only 5 per cent cannot make up for a disincentive that is already set at 17.5 per cent.This is a very potent point. If the result of this debate were to be that a very strong plea went in for that particular change to be made then I think that a great deal of the other worthy aspirations contained in this Paper would be much more easily achievable. That is the only serious point I wish to make.
There are so many other points that could be made. I look forward to the next debate we have on housing, the one after that and the one after that because I am sure that we will have them.
8.19 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, I am not sure of that unending sequence of housing debates to which the noble Lord, Lord Dixon-Smith, looks forward. I do not think I quite share his enthusiasm. Nevertheless, I welcome this debate tonight. It gives me the first chance to debate these issues since announcing the Housing Green Paper on 4th April. The publication of that report does put housing back pretty close to the top of the agenda.
That Green Paper represented the most comprehensive review of housing for over 20 years. The Green Paper invited views on the proposals. Over 1,000 organisations and individuals responded. I know that many of the questions raised in this debate were also covered in those responses. We are currently developing the proposals in the light of the responses to that consultation. It is the intention of my colleagues to announce our detailed considerations later this year at which point, no doubt, the noble Baroness will request a further debate on these matters. In the meantime I can tell the House that most respondents welcomed the Green Paper which is gratifying. I understand that out of 1,099 respondents only seven disagreed fundamentally. There were one or two specific concerns and modifications that respondents would wish to see. We are considering those proposals.
Many respondents said that the proposals would work only if the Government provided the resources necessary to implement them. I believe that our spending plans for the next three years, announced in

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July, provide resources for our Green Paper proposals. They will provide an additional £1.8 billion over the next three years on top of the doubling in capital investment in housing which we have announced since 1997. In particular the spending plans will put us on track to meet the Green Paper commitment to bring all social housing up to a decent standard over the next decade and will nearly double the Housing Corporation's approved development programme to provide affordable housing. They provide another £250 million over the next three years for a new starter home initiative to help key workers to buy their own homes in areas where they might otherwise be priced out. The Government are therefore providing substantial resources to all parts and all tenures within the housing market.
It is perhaps appropriate, however, if I address that section of our society who regrettably have no form of tenure; namely, those homeless families and individuals whose plight was graphically described by the noble Earl, Lord Listowel. Our proposals in the Green Paper will fulfil our election manifesto promise to increase protection for unintentionally homeless people in priority need. Our announcements to be made later this year will take that forward. Ideas have been worked up in that area in consultation with local government, Shelter, the National Housing Federation and the Chartered Institute of Housing. The aim is to ensure that the homelessness safety net provides temporary housing support for those in priority need. We want to ensure that homeless people are given more help to ensure that they are provided with housing solutions which are sustainable. I agree entirely with the noble Earl that more should be done in that field and it is certainly our intention so to do.
The noble Baroness, Lady Maddock, mentioned choice and stock transfer. She suggested that many tenants had no choice but to opt for stock transfer. I do not think that that is correct. At several different levels our proposals provide more choice for tenants, as my noble friend Lady Dean said. Stock transfer is a choice available to local authorities and to their tenants. We back it only where those tenants vote for it. As my noble friend Lord Smith of Leigh indicated, there are local authorities and tenants who prefer local authority housing. Local authorities can, and will, continue to own and manage their own housing under the new financial framework which includes more efficient business planning and a new major repairs allowance. These options provide real alternatives to stock transfer. We want local authorities to consider which option best meets a tenant's need and to consult with tenants on the choices available to them.
Many improvements can be made in the area of social housing without any changes in legislation. I assure my noble friend Lady Dean that those areas are already being pursued and will continue to be pursued. Others will require some legislative approach, including the area of rent reform in both the social and private sectors. In the social sector the Green Paper proposes a number of reforms to bring greater coherence and fairness to rents charged by councils and registered social landlords and to ensure that they
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remain affordable in the long term. As the, noble Baroness said, the current pattern of rents is not sensible and can in many cases be incoherent and unfair to tenants. Most respondents who commented on the rent proposals supported the aim of the reforms. The announcement to be made later this year will set out our plans for taking forward rent reforms in the social housing sector.
As the noble Lord, Lord Greaves, indicated, there are also rent problems in the private sector, some of which stem from deregulation and some of which stem from more recent problems of inequities. We need to face up to those problems. We also need to provide new initiatives in the private rented sector. I do not entirely agree with the noble Lord's criticism of renewal areas which he appears to reject. I tend to agree with my noble friend Lord Smith that in certain circumstances those renewal areas can work well. It is not correct to suggest that we are reducing activity on private housing renovation. The Green Paper proposals will give local authorities new options to stimulate action with increased resources for local authority investment and will give them greater discretion on how they use their capital. In those areas where private sector renovation is a high priority, we expect to see that reflected in local authorities' strategies.
A number of other points were raised. The noble Lords, Lord Oakeshott and Lord Dixon-Smith, referred to the effects of VAT on housing and in particular VAT levied on housing renovation work and the need to bring it closer in line with the zero rate applied to new housing construction and thus reduce what is undoubtedly a significant perceived disincentive to refurbishment. Several respondents to the Green Paper made precisely those points and referred to what they considered the distortion in the housing market and housing priorities which resulted from that. However, at the end of the day, these are matters for the Chancellor. There are other provisions in the Housing Green Paper and in the new planning guidance on housing (PPG3) which will provide an effective range of measures to improve the quality of housing and ensure improvements for existing buildings. No doubt the taxation issue can be returned to at a later stage.
The noble Baroness, Lady Maddock, referred to housing benefit. Clearly that has a major effect on the housing market. There are serious problems with housing benefit. We are engaged in a process of looking at housing benefit reform which would further our wider aims for the welfare state of providing security in old age and support for those who cannot work. We want to consider what is the best way to reform housing benefit. We want to build on the initiatives set out in the Green Paper in that respect. In that context we also want to consider ways to broaden the single room rent as proposed in the Green Paper—a number of noble Lords referred to that—to ensure that we provide adequate support for young people to live in reasonable accommodation and provide them with a secure base from which to find a secure job. I say

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to the noble Baroness, Lady Miller of Chilthorne Domer, that that applies to rural as well as urban areas.
The noble Baroness, Lady Miller, referred more generally to the important issue of rural housing. We shall shortly produce a rural White Paper which will set out in detail the Government's strategy to deliver more affordable housing in rural areas and to tackle, among other things, the problem of the young homeless and the hidden homeless in rural areas who sleep on their mates' floors, as the noble Baroness said. I have no doubt that there is a problem in that respect. Therefore our proposals on vulnerable homeless people will be covered in our announcements later this year.
The noble Baroness and, I believe, the noble Earl, Lord Listowel, raised the issue of houses in multiple occupation. As we indicated, we are firmly committed to introduce measures which will require legislation as part of our strategy to promote a healthier private rented sector. I have seen some of the newspaper reports to which the noble Baroness referred. Clearly they give a damaging message. We are anxious to avoid the property market getting the wrong perception of the proposals. At the same time we need to tackle the well-documented problems which have bedevilled this sector for too long. I echo what the noble Baroness said: that our proposals for licensing, including the licensing conditions, are intended to improve the standard of housing. They are not intended as a restriction on effective and decent landlords. We are intent on introducing the system of licensing for HMOs.
My noble friend Lord Graham referred to cooperative housing and the substantial support for the housing co-operative movement in this Government. He raised the issue of the commonhold and leasehold Bill which is in early draft form and may be brought forward at later stages by the Government. The question of transferring to a co-operative under the Bill is a complex issue. I know that my colleague, Nick Raynsford, is in receipt of a letter from my noble friend. Rather than trying to squeeze in the response on that, perhaps he can await my colleague's letter.
My allocated time is up. I hope that I have managed to answer most of the questions. I hope, therefore, that the House is convinced of the determination of this Government to act on the Green Paper, and will watch this space for an announcement later this year.

Freedom of Information Bill
8.31 p.m.
House again in Committee on Clause 3.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 57:
Page 2, line 35, leave out ("or by a government department") and insert ("by a government department or by the National Assembly for Wales").
The noble and learned Lord said: This is a substantial group of amendments concerning the operation of freedom of information in the devolved administrations in Wales and Northern Ireland. The amendments which the Government now table—I shall deal with the points raised by the noble Lord, Lord Roberts—involve no new policy but are necessary to ensure that freedom of information is applied on a consistent basis across the United Kingdom and the devolved administrations in Wales and Northern Ireland.
I take the amendments in groups. I turn first to government Amendments Nos. 57 to 59, 61, 62, and 68, and Amendment No. 63 tabled by the noble Lord, Lord Roberts of Conwy. The First Secretary of the National Assembly for Wales has asked that the National Assembly be treated as a distinct body in Clause 3 and elsewhere and not subsumed within the definition of government department. This necessitates a number of amendments to the Bill where we refer currently to the National Assembly. Paragraph 5 of Schedule 1, to which the noble Lord, Lord Roberts, referred earlier, already provides that the National Assembly is a public authority for the purposes of the Bill and nothing in these amendments affects that.
Amendment No. 62 deletes the provision which provides that the reference to a government department in Clause 3 includes reference to the National Assembly. That deals with one of the points raised.
Amendments Nos. 57 to 59 insert specific references to the National Assembly to ensure that bodies and offices established by it may be included by order in Schedule 1 as public authorities for FoI purposes. Amendments Nos. 61 and 68 have the effect that before making an order in relation to a Welsh or Northern Ireland public authority under Clause 3 (to add or delete an entry) or Clause 6 (to amend an existing entry) the Secretary of State must consult the devolved administration. These amendments recognise on the face of the Bill the roles of the National Assembly for Wales and the Northern Ireland Assembly in relation to the devolved administrations. I commend the amendments to the Committee.
Amendment No. 63—the amendment spoken to by the noble Lord, Lord Roberts of Conwy—asserts that the National Assembly for Wales is a public authority in its own right. I have said that paragraph 5 of Schedule 1 already makes that clear. The government amendments I have just described further clarify the position. In particular the deletion of the provision which provides the reference to a government department includes the reference to the National Assembly. That was one of the points the noble Lord raised. In the circumstances of our amendments I do not think that the amendment in the name of the noble Lord, Lord Roberts of Conwy, adds anything. I ask the noble Lord to consider withdrawing that amendment in due course.
I turn to the government amendments which deal with the scope of the exemptions at Clauses 33 and 34. In furtherance of the general policy in relation to the manner of reference to the National Assembly set out above, Amendment No. 168 in part deletes the provision which included the National Assembly within the reference to "government department" for the purposes of Clause 33. Amendment No. 168 compensates for this by inserting a specific reference to the National Assembly into Clause 33 to ensure that the clause continues to apply to information held by it. For the sake of clarity, Amendments Nos. 178 and 180 to 182 provide that the clause covers the policy of the devolved administrations and clarify the application of the clause to the executive committee of the National Assembly.
Amendment No. 179 has an effect in relation to both of the devolved administrations and to the UK Government. The listing of the "ministerial communications" defined in subsection (3) of Clause 33 makes it clear that the provision in relation to such communications applies to internal communications between parts of the same administration, for example Ministers of the Crown, but not communications between different administrations. It introduces an additional category of communications between assembly secretaries. This addition is required to ensure that the Assembly First Secretary and other assembly secretaries are dealt with in a manner comparable to Ministers of the Crown and Northern Ireland. I commend the amendments to the Committee.
I turn to the amendment which relates to Clause 34 and the "qualified person". Amendment No. 183 includes within Clause 34 a specific reference to the National Assembly. Amendment No. 186 is consequential. Amendments Nos. 194 to 196 are concerned with the definition of "qualified person" for the purposes of Clause 34 in relation to Welsh and Northern Ireland public authorities.
Amendments Nos. 194 and 196 provide that the qualified person for Welsh public authorities, except the Auditor General for Wales and Northern Ireland public authorities, is an officer or employee of the authority authorised by the Assembly First Secretary or the First Minister and Deputy First Minister acting jointly or, if not, then the authority itself. In relation to the Auditor General for Wales, Amendment No. 195 provides that the holder of that office is to be the qualified person.
A number of definitions are introduced. Amendment No. 355 introduces a definition of "Welsh public authority". Subsection (3) of the new clause would have the effect of requiring that the Secretary of State must consult the National Assembly for Wales before making any order. Given the limited nature of the order-making power, and the requirement of consultation, the Government do not believe that there is any need for a parliamentary procedure in respect of such orders.
Amendment No. 365 relates to the definition of a Welsh public authority and is consequential on Amendment No. 355.
Amendment No. 360 provides that Northern Ireland public authority means any public authority other than the Northern Ireland Assembly or a Northern Ireland department whose functions are excercisable only or mainly in or as regards Northern Ireland and relate only or mainly to transferred matters.
Amendment No. 359 defines "executive committee" in relation to the National Assembly. Amendment No. 351 deletes the provision which includes the National Assembly for Wales within the definition of "government department" for the purposes of this clause. Amendment No. 350 also makes another modification. It clarifies that Clause 39 cannot be relied upon by one UK government department in relation to confidence owed to another UK government department or by one Northern Ireland department in relation to confidence owed to another Northern Ireland department. I commend these amendments to the Committee.
Amendments Nos. 235, 331 and 356 are concerned with the duty to consult with the relevant authority in Northern Ireland on issues relating to public records. Amendment No. 235 replaces a reference to the Northern Ireland Minister responsible for public records in Northern Ireland with a reference to the appropriate Northern Ireland Minister as the person the Lord Chancellor shall consult before issuing or revising his code of practice.
Amendment No. 331 replaces a reference to the Northern Ireland Minister responsible for public records in Northern Ireland with a reference to the appropriate Northern Ireland Minister as the person the public authority shall consult before refusing a request for any information contained in a historical record.
Amendment No. 332 makes it clear that Clauses 64 and 65 do not both apply to the same information. Were this to be the case it would be a nonsense. Clause 64 is concerned with cases where a public authority holds information in an historical record. It provides that a decision not to disclose in the public interest should not be taken without consulting the Lord Chancellor.
Clause 65 applies to information that is held by the Public Record Office. It deals with historical records more fully—we shall presently consider relevant amendments. The consultation requirement in Clause 64 is reflected in those amendments. It would therefore be highly inappropriate for Clauses 64 and 65 to apply to information that was held by the Public Record Office.
Amendment No. 356 defines the appropriate Northern Ireland Minister as the Northern Ireland Minister in charge of the Department of Culture, Arts and Leisure in Northern Ireland.
That was a long and rather technical list of amendments which are necessary to ensure that the system works in Northern Ireland and Wales. They introduce no change in policy. In that context, the Bill has always made provision for consultation between the Lord Chancellor, the Northern Ireland

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administration and the Northern Ireland public authorities. The amendments introduce technical changes to ensure that the policy has effect.
Before the supper break, the noble Lord, Lord Roberts of Conwy asked why Assembly subsidiaries should be dropped from Schedule 1. Assembly subsidiaries will still be covered in two ways: first, by Clause 5, which relates to wholly owned companies, and, secondly, by any orders that are made under Clauses 3 or 4 as appropriate. It was felt that it was inappropriate to treat Assembly subsidiaries in a blanket way—they were in effect previously being treated in that way. The noble Lord also asked whether there was confusion about coverage of the Assembly. The answer is no. The definition of government departments now excludes the Assembly—that is covered in Schedule 1—and we believe that that is right. We referred to the Assembly in some clauses—for example, Clause 33—by including it in the definition of government departments. We now agree that it is better simply to refer to the Assembly in its own right throughout the Bill. That is what this long and slightly dry group of amendments has done. I beg to move.
Lord Roberts of Conwy: I am grateful to the Minister for the tidying-up operation that has clearly taken place. His description of the amendments makes it clear that the provisions relating to the National Assembly for Wales have been considerably improved. However, that begs the question about the consultations that occurred with the National Assembly before the Government tabled their amendments.
The Minister should take on board the fact that consultation between central government and the National Assembly for Wales is not as refined, polished and advanced as it should be. However, he paid a clear tribute to the First Secretary, Mr Rhodri Morgan, who has obviously taken the matter in hand. As a result, the Bill's provisions relating to Wales are better. We shall of course study the amendments once the Bill has completed its Committee stage and before we reach Report.
Who will supervise the Bill's implementation in Wales? Apart from the National Assembly, a host of bodies is contained in Schedule 1. Those bodies, which include the Ancient Monuments Board for Wales and the Arts Council for Wales, are responsible to the National Assembly. I accept that under the Bill's provisions, the National Assembly is a public authority that is accountable; so, too, are what I might call the subsidiary authorities that are responsible to the National Assembly. For example, how will the information commissioner work in Wales? Will he or she have a specific relationship with the National Assembly, or will he or she deal directly with the bodies that are subsidiary to the Assembly?
I am glad that the noble Lord took on board the point that was made about consultation. The arrangement by which the Secretary of State will consult the National Assembly is ably dealt with in
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Amendments Nos. 61 and 68. I dare say that there is further provision for consultation before making additions to or subtractions from the list in Schedule 1.
The position of the National Assembly for Wales is in marked contrast to that of the Scottish Parliament, which is, so far as I can make out, excluded from the Bill. That is not the case with the Northern Ireland Assembly. Before the introduction of the amendments to which the Minister has spoken, the provisions relating to the Northern Ireland Assembly were rather better than those relating to the National Assembly for Wales.
I note the Minister's comments on the Welsh Assembly's subsidiaries, which will still be covered. However, some bodies are not mentioned in Schedule 1, namely the Cabinet of the National Assembly and the associated committees. I assume that the Bill will cover them through the title of the National Assembly for Wales. A further problem involves local authorities, especially in view of the provisions in the Local Government Bill for cabinet-style government.
I conclude with a question. Are the Government sure that under the proposed new cabinet system for local government, local authorities will still be subject to the Bill's provisions?
Lord Lucas: I take this chance of riding on our general discussion about Wales to ask the Minister to clarify the position of the Welsh language under the Bill's provisions. Am I right in thinking that an application under Clause 7 could be made in Welsh? The provisions of Clause 10(1)(a) suggest that a request that the reply be received in Welsh would have to be acted on. Under Clause 19(1), would information provided in English be deemed to be not reasonably accessible to someone who was a Welsh speaker? To pursue the matter further, what is the position of someone who does not speak English or Welsh and who is a relatively recent immigrant or a member of a minority community? Would the Bill entitle such a person to ask for, and expect to receive, information in the language that he happens to speak?
Lord Cope of Berkeley: My preliminary advice is that the amendments improve the Bill no end with regard to Wales. We support them. One can only wonder how a provision as odd as defining a government department as including the National Assembly for Wales was ever included, particularly when other clauses specifically contradict that. The National Assembly should never be regarded as a government department. It is clearly a public body.
Scotland is excluded under Clause 78 because it is within the authority of the Scottish Parliament to carry forward any equivalent legislation. The United Kingdom Government are covered in so far as their powers extend to Scotland, but not the departments affected by devolution. My information is also that the amendments clarify the position for Northern Ireland.
Lord Falconer of Thoroton: To respond to the noble Lord, Lord Roberts of Conwy, we are alive to the need for consultation, particularly on the Bill. There is

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regular consultation between Home Office officials and the National Assembly for Wales about the terms and implementation of the Bill. The noble Lord was right to identify that many of the changes were brought forward at the request of the First Secretary.
I was asked who will supervise the implementation of the Bill in Wales. Every public authority is required to produce a publication scheme. That has to be approved by the information commissioner, who is responsible for the day-to-day implementation of the Act.
For the purposes of the Bill, the public authority is the National Assembly for Wales. The Cabinet and its committees will be subsumed in that. Equally, executive or cabinet-style local authority committees are covered by reference to the local authority.
The noble Lord, Lord Lucas, asked about a question put in Welsh. Welsh language requests will be dealt with in accordance with the Welsh language scheme that will apply in relation to the relevant authority.
I think that that deals with all the questions that have been asked. I commend the amendments to the Committee.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 58 and 59:
Page 2, line 38, leave out ("or by a government department") and insert ("by a government department or by the National Assembly for Wales").
Page 2, line 41, leave out ("or by a government department") and insert ("by a government department or by the National Assembly for Wales").
On Question, amendments agreed to.
[Amendment No. 60 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 61 and 62:
Page 3, line 9, at end insert—
("( ) Before making an order under subsection (1), the Secretary of State shall—

(a) if the order adds to Part II, III, IV or VI of Schedule 1 a reference to—

(i) a body whose functions are exercisable only or mainly in or as regards Wales, or

(ii) the holder of an office whose functions are exercisable only or mainly in or as regards Wales,

consult the National Assembly for Wales, and

(b) if the order relates to a body which, or the holder of any office who, if the order were made, would be a Northern Ireland public authority, consult the First Minister and deputy First Minister in Northern Ireland.").

Page 3, leave out line 12.
On Question, amendments agreed to.
[Amendment No. 63 not moved.]
Clause 3, as amended, agreed to.
Clause 4 [Further power to designate public authorities]:
[Amendments Nos. 64 and 65 not moved.]
Clause 4 agreed to.
Clause 5 agreed to.
Clause 6 [Public authorities to which Act has limited application]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 66:
Page 4, line 16, leave out paragraph (a).
The noble Lord said: I shall speak also to Amendment No. 67. Clause 6(3) allows the Secretary of State to limit by order the right of access to specified information that is held by a public authority. The provisions were described in another place as "housekeeping measures"—a phrase that was used a little earlier. They allow the Government to amend the Bill to take account of changing functions. We support the idea behind the provision but the question is how it should be worded.
The Bill says that the Secretary of State may by order amend Schedule 1,
"by limiting to information of a specified description the entry relating to any public authority".
Amendment No. 66 would require the Secretary of State to specify the functions of the public authority that were to fall within or without the Bill, rather than particular information. That is more desirable.
Amendment No. 67 would limit the Secretary of State's power by removing the ability to amend any limitation. He could still remove a limitation if he wished to do so. I beg to move.
Lord Bassam of Brighton: The amendments would deny the Secretary of State the power to make an order to limit to information of a specified description the entry in Schedule 1 relating to any public authority and would remove the power to amend any such limitation.
When the amendments were debated in another place, my honourable friend the Parliamentary Under-Secretary of State, Home Office, acknowledged the potential mischief at which they were aimed, but we still believe that they are unhelpful—I do not often use that word—and unnecessary in dealing with the perceived mischief.
Members of another place were clearly concerned that the limited order-making power in Clause 6(3) could be abused by Ministers intent on removing whole areas of information from the provisions of the Bill.
The Government have listened to those concerns and responded. Our proposals do not allow the Secretary of State to use his powers arbitrarily. Any order made under Clause 6(3) would be subject to the affirmative resolution procedure by virtue of Clause 80(2)(a). That means that any proposal to vary or limit the scope of an existing entry in Schedule 1 could be given effect to only after the careful consideration and approval by Parliament of a draft order. We believe that that is a sufficient safeguard.
Amendments Nos. 66 and 67 go further than is reasonable. They would remove much-needed flexibility in the approach to coverage under the Bill. It currently applies to tens of thousands of public authorities, many of which pursue functions that are conferred on them otherwise than by primary

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legislation. It is right that the Bill should have a mechanism for excluding information relating to functions that public authorities have acquired by other means when it is not appropriate for such information to be subject to the rights in the Bill.
We do not want to get carried away with the Bill's proposals. Very few entries contain such limitations and we do not intend to increase that number dramatically by use of the order-making power in Clause 6(3). However, it is a necessary power. I hope that I have encouraged the noble Lord to withdraw the amendment.
9 p.m.
Lord Hunt of Wirral: I believe that it would greatly assist the Committee if the noble Lord could provide examples of the kind of limitation which he believes Ministers should be allowed to make regarding documents or information relating to a specific description. I can well understand that he is putting forward a general argument but it is in relation to a specific power. If the Minister could provide examples of the kind of power which he proposes should rightly be exercised under this extension, I believe that that would enable us to understand why that is so necessary.
Lord Bassam of Brighton: I am not sure that, as of this moment, I can answer the noble Lord. However, if the noble Lord, Lord Cope, is happy to withdraw the amendment, I can assure the Committee that I understand the point that is being made and shall be happy to expand on it on Report.That may be the more appropriate way in which to deal with the matter.
Lord Cope of Berkeley: Perhaps the Minister would send us a letter, as he has done on other such occasions. In the past, he has frequently been very kind when dealing with other Bills to write on matters of this type. I believe that the Minister was quite right to stress the fact that there is an affirmative resolution procedure. I understand that that was inserted by a government amendment in another place. It covers these provisions and that does help. However, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 67 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 68:
Page 4, line 20, at end insert—
("( ) Before making an order under subsection (3), the Secretary of State shall—

(a) if the order relates to the National Assembly for Wales or a Welsh public authority, consult the National Assembly for Wales,

(b) if the order relates to the Northern Ireland Assembly, consult the Presiding Officer of that Assembly, and

(c) if the order relates to a Northern Ireland department or a Northern Ireland public authority, consult the First Minister and deputy First Minister in Northern Ireland.").

On Question, amendment agreed to.
Clause 6, as amended, agreed to.
Clause 7 [Request for information]:
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 69:
Page 4, line 40, at end insert ("and expressed to be made pursuant to this Act").
The noble and learned Lord said: This amendment deals with a matter which has been adverted to in earlier debates. I am not even sure that it has not been overtaken by those debates. However, it is a point for which I am indebted to the Clifford Chance partnership.
As the Bill is currently drafted, any request for information which is in writing, states the name and address of the applicant and describes the information requested is within Clause 7 of the Bill. If that information is not provided, the whole machinery of the Bill is triggered: the charging of fees, the consideration of public interest and the right of appeal.
Not everyone who writes to a local authority asking a question intends or wishes to spark off all that machinery. Therefore, I ask my noble and learned friend whether we should limit such action to cases where a person wishes to invoke those rights under the Bill. Thus, I tabled the amendment, but in a spirit of being helpful. Some Members of the Committee seem to find it surprising that I should ever be in a spirit of being helpful. However, I sought to limit the operation of the Bill where it does not seem appropriate to apply it.
Since I tabled the amendment, it has been pointed out to me that I may be being too helpful. Many people—perhaps most—will not know of their rights under the Act; they will not even know of the Act. As I ventured to say earlier, not every pub and every mothers' union in the country are making this their major topic of conversation. Therefore, I was asked whether it would be too easy for a public authority which does not wish to disclose information to say, "Well, the request does not mention the Act; let's ignore it".
If the two arguments are to sit together—and I believe that there is force in both—and if the information requested is available to the public authority, surely it should answer the question or justify its refusal to answer under the Act. From what my noble friend Lord Bassam said in answer to an earlier debate, I understand that that is the Government's intention, although it will not be a legal requirement under the Act.
Therefore, the person who asks the question will be alerted to the existence of the Act and the rights which it accords him. He can then decide whether he wishes to invoke his rights under the Act. If he decides that he wishes to activate the whole process, he will then be aware of the option and can make his choice.
Having put the two sides of the argument and the process by which I arrived at this dilemma, I confess that I am not sure whether I support my own

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amendment. However, I believe that it may be worth a discussion and I should be most grateful to hear my noble and learned friend's reactions.
Lord Phillips of Sudbury: Before the noble and learned Lord sits down, I should be grateful if he could tell me in whose interest Clifford Chance advanced the amendment.
Lord Archer of Sandwell: Like many others who have written to us, I believe that they did so genuinely in the interests of getting the Bill right.
Lord Goodhart: Like the noble and learned Lord, Lord Archer of Sandwell, we, too, are uncertain as to whether the amendment is helpful. I believe that probably it is not. Whether through a code of practice or otherwise, if local authorities are asked the kind of simple, routine questions that they tend to be asked and answer for nothing now, such as, "What is the date of the next council meeting?", I hope that they would simply provide an answer without requiring the applicant to go through the rigmarole of making it an application under the Act.
However, where a request for information is made, I believe that it is right that it should be treated as being made under the Act. Therefore, as the noble and learned Lord, Lord Archer, said, if a fee is to be charged, the applicant for the information will be told that and will then decide whether or not to proceed. That seems to me to be preferable to being told that the question does not qualify as a request for information under the Act and that therefore it will not be dealt with.
Lord Hunt of Wirral: Perhaps I may intervene. I believe that the amendment provides the opportunity to reflect for a moment on the need to make the procedure simple so that people can gain access to information and documentation simply by writing in to ask for it.
When I had responsibility for this area I was keen to ensure that any request under the code did not trigger into action a great bureaucratic machine. The noble Lord, Lord Phillips, asked a penetrating question as to why the largest law firm in the United Kingdom should consider this matter. I believe that it did so in the right spirit, which was to try to ensure that a request for information can be answered promptly, swiftly and without triggering a great bureaucratic consequence. This is a welcome opportunity to remind ourselves that we must keep it simple, so that people can gain access to that information to which they are entitled.
Lord Cope of Berkeley: The noble and learned Lord, Lord Archer, said that the first half of his speech was intended to be helpful, but I actually agree with the second half! One noble Lord who considered this matter—I would not dream of looking around the Committee and agreeing with him—suggested that this provision was a "lawyers' ramp" in that it ensures that lawyers need to be involved in making the
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application because only lawyers, as opposed to ordinary individuals, are likely to know of all the different powers under the Act. For that reason I agree with my noble friend Lord Hunt that we should keep it as simple as possible. Therefore, I do not support the first half of what the noble and learned Lord, Lord Archer, said, but I support the second half.
I believe that requests should be submitted in writing. I am not sure whether the words "in writing" cover an e-mail request, which would be electronically written rather than physically written on a piece of paper. We could explore that on another occasion. It does not arise directly out of this amendment, but it arises out of the clause. We are told that the Government are an Internet-friendly government, so presumably that is intended to be covered by the words "in writing". No doubt, if a request comes in that form, a reply may be in writing. My noble friend Lord Lucas has had difficulty acquiring information from government departments in electronic form, but perhaps in future it will become much easier.
Lord Bassam of Brighton: I am grateful to the noble and learned Lord, Lord Archer, for telling the Committee that he does not fully support his own amendment! That has made my job a lot easier. As currently drafted, the Bill applies to all requests for information. Therefore, whether the applicant mentions the Act or not, the Bill applies to any request for information as long as it is made in writing. For the benefit of the noble Lord, Lord Cope, e-mail requests are covered by the term "in writing". I believe the reference is Clause 7(2). In making the request in writing the name of the applicant and an address for correspondence will need to be covered as well. Of course, that would cover e-mails.
Lest anyone runs away with the idea that the approach that we have taken in the Bill is novel, I should remind the Committee that under the Code of Practice on Access to Government Information, there is no requirement on the applicant to cite the code in any request for information. The same is true for requests under the Data Protection Act 1998 and the Environmental Information Regulations. That is an approach that is standard in access regimes. In any event, there are sound reasons of principle behind that policy.
I do not want us to lose sight of the purpose of the Bill. It creates new rights for all citizens and, as such, the rights exist without the need to rehearse them. It is enough that the citizen requests information; in the main, he or she should have to do no more. It will be his or her right to receive that information, subject to exemptions. There are also practical considerations that speak against the amendment. The same rules should govern the release of all information by public authorities. I am sure that the Committee will agree that there should be no scope for two similar requests to be dealt with differently, not least where they are made in the same form.
Moreover, I believe that the amendment could reduce the effectiveness of the Bill to act as a catalyst to open up the public sector. For the Bill to be such a

983
catalyst, the onus for applying the rules of freedom of information should be on authorities, who should take responsibility for the duties that the Act will impose on them. By requiring applicants to quote the Act when making their request, the amendment places the onus on applicants to trigger the rights that the Freedom of Information Bill confers, with the result that authorities could lose that sense of responsibility for applying the legislation. I hope that the noble Lord will feel able to withdraw his amendment.
Lord Archer of Sandwell: I am grateful to all Members of the Committee who have participated in this short debate and to my noble friend for outlining the Government's thinking. One matter that clearly emerges is that there is no substitute for good faith on the one hand and common sense on the other. If someone visits the town hall to inquire the time because he has lost his watch we do not expect him to be referred to the machinery of the Bill. However, all that we now seek to do will collapse if public authorities do not have good intentions in this respect. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
9.15 p.m.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 70:
After Clause 7, insert the following new clause—

Freedom of Information Bill

  THIRD PARTY COMMERCIAL INTERESTS: REQUEST FOR INFORMATION
  (" .—(1) When a request for information is received by a public authority and that information relates to a third party's commercial interests the public authority shall—

  (a) without delay notify the third party of the request for information and the extent and nature of the information relating to the request and give the third party a reasonable opportunity to make representations regarding whether the information requested falls under an exemption as listed in Part II; and

  (b) have due regard to any such representations before discharging the duty to confirm or deny and before communicating the information or giving a notice under section 15.

  (2) For the purposes of subsection (1)—

  (a) "third party" means anyone other than the person making the request of any public authority; and

  (b) information shall be taken as relating to a third party's commercial interests if that person provided the information to the public authority, is identified in the information and is reasonably likely to be affected (at any time) by disclosure of the information or its existence.

  (3) Where, after due regard has been given to any representation made in accordance with subsection (1), a public authority is to any extent not relying on a claim that information is exempt information in reaching its decision, the public authority must, without delay, give the third party a notice which—

  (a) states that fact;

  (b) specifies the exemption in question; and,

  (c) states why the exemption does not apply.").

  The noble Lord said: This amendment raises another point of considerable importance; namely, third party commercial interests. Under the Bill as it
  984
  stands a third party, for example a company which contracts with the public authority concerned, may be affected by the disclosure of information concerning that business. The company has no right even to be notified of any application for disclosure. The intention of the new clause is to provide such a right and to give the company an opportunity to say to the public authority that it believes that the request falls under one of the exemptions provided in the legislation. The amendment does not give the commercial organisation concerned any veto over the matter; all it does is allow the company to make representations within the general terms of the Bill. I believe that that is the least such an organisation can expect.
  At the moment there is great concern about the onerous regulation of business. The Institute of Chartered Accountants in England and Wales, to which I belong, has just reported the results of its latest survey into the regulation of business. They reveal that the burden of new regulation on business has doubled in the past 12 months since the previous survey. Without going into the details, that is some of the background. That burden potentially places more difficulties on those who do business with the Government, and it is important that organisations have this safeguard within the Bill.
  The other amendments in the group are of the same character. Amendment No. 78 ensures that the relevant third party commercial interest cannot delay unduly in deciding what to do about it. It is given 10 days within which it must respond, should it wish to do so. That is not a long period, but it provides the organisation with an opportunity to make its point. It is important to ensure that the Bill does not make it more difficult for third parties to contract with the Government and add to their costs and problems one way or another. The amendment also ensures that they are protected from incorrect or damaging information, although not entirely since the responsibility remains that of the public authority. However, we all know that public authorities do not always understand the concerns of business or the delicate nature of its operations. This amendment provides a small tripwire to try to protect those who do business with government. I beg to move.
  Lord Goodhart: It is obviously correct that third parties whose rights and interests are likely to be affected if information is disclosed should have the right to be heard before any order is made for disclosure. The question is whether this particular amendment is the right way to do it. I understand that the Government intend to do this in the code of conduct by means of the provisions of Clause 44. I have had an opportunity to look at the code of conduct. At a rapid glance—I have not been able to consider it in detail—it appears fairly satisfactory.
  There are also cases where it may not be necessary to consult the third party, in particular where the public authority in question is clearly of the opinion that the information should not be disclosed and, therefore, the third party will not be affected by it anyway. If a

  985
  more tightly defined amendment could be produced which said, for example, that the rights of a third party should not be affected by disclosure of commercial information without that party having been informed of the proposal, I think our reaction might be somewhat different. As the amendment stands, we do not feel we can support it, although we respect the principle behind it.
  Lord Brennan: I have a concern about the structure of the Bill in relation to the effect on third parties of applications for information which might involve confidential data. If I understand the Bill correctly, Clause 7 is the trigger for the request for information; and Clause 41 identifies certain commercial information as being "exempt", as it is defined. But on the face of the Bill there is no provision for the third party to take steps to protect his own interests. Could the Bill as it is now drafted be used in a way that a government department or civil servants could rely on Clause 41 by saying, "This is confidential information", without any reference to the party whose interests might be affected?
  Perhaps I may give an example which is entirely hypothetical but based on fact. In the Access to Justice Bill last year there was considerable debate as to whether the withdrawal of legal aid for personal injury would be adequately counteracted by the provision of a conditional fee system supported by insurance against the defendant's costs, should the plaintiff lose. On many occasions during the debates that I listened to, when questions were asked about what the insurers were going to provide it was said that it was confidential, commercially sensitive information. That meant that there was no means of determining whether what the insurers were saying provided an adequate balance against the withdrawal of personal injury. Perhaps it did. It does not really matter. I am using the fact as art hypothesis. In that example, a government so inclined, through a department, could say,
  "The commercial interests are being affected. We are not going to give the information",
  without any reference to the third party at all.
  I have a second concern. What is the position where there is a disagreement between the Government and a third party? It may arise in one of two ways. The Government may wish to reveal but the third party may not and vice-versa. How is the problem then to be resolved? This is an extremely important part of the Bill. Many of the public concerns that may arise will affect things like the provision of health services, the safety of drugs and railway safety systems, all of which involve third party commercial interests. I invite the Government to clarify these matters either now or later.
  Lord Lucas: Perhaps I may add a personal anecdote. A government department has refused to provide me with information, on the grounds of confidentiality,
  986
  which it knows the third party would be very happy to have released. But it refuses to ask the third party so that it does not have to provide the information to me.
  Lord Lester of Herne Hill: The Government have not done themselves any favours by not making more of the draft code. I did not know that it was in the Library until it was indicated earlier. Like my noble friend Lord Goodhart, I have now had a look at it. I wonder whether it will help if I read in a relevant passage which deals with the problems that the noble Lord, Lord Brennan, particularly raised. It seems to me that the way the code deals with the matter perfectly balances the competing rights and interests. Therefore, it may be for the convenience of the Committee to have it not as a separate document in the Library but actually in the report of the debate. It is not too long. Part IV, Consultation with Third Parties, states:
  "In some cases the disclosure of information pursuant to a request would affect the existing legal rights of a third party such as the right to have certain information treated in confidence or the right to personal privacy. Where the consent of the third party would enable a disclosure to be made an authority should consult that party prior to reaching a decision, unless it is clear to the authority that the consent would not be forthcoming.
  Where the interests of the third party which may be affected by disclosure do not give rise to legal rights, the public authority should consider whether it should consult the third party. Consultation may be unnecessary where: the public authority does not intend to disclose the information relying on some other legitimate ground; the views of the third party can have no effect on the decision of the authority, due to other legislation preventing the disclosure of this information, for instance; or the cost of consulting with third parties would be disproportionate.
  Consultation should take place where: the views of the third party may assist the authority to determine whether information is exempt from disclosure under the Act; or the views of the third party may assist the authority to determine whether to exercise its discretion to disclose information in the public interest under section 13 of the Act.
  Where the interests of many parties may be affected by disclosure (but not their legal rights) and those parties have a representative organisation which can express views on behalf of those parties, the authority may, if it considers consultation appropriate, consider that it would be sufficient to consult a representative organisation or a representative sample of the third parties in question.
  An authority cannot fail to comply with its duty to disclose information under the Act, or its duty to reply within the time specified in the Act, on the grounds that the third party has not responded to consultation".
  Finally, there is an important further section which deals with a point to which the noble Lord, Lord Cope, referred. Part V, Freedom of Information and Public Sector Contracts, states that public authorities should not enter into contracts with unnecessary restraints vis-à-vis third parties on the provision of information.
  I apologise for quoting at length but it seems to me that it gives flesh to the bare skeleton of the Bill and indicates a proper practical way of dealing with these important issues.
  Lord Hunt of Wirral: The noble Lord, Lord Brennan, was right to draw our attention to what could be a difficult situation. Perhaps I may refer back

  987
  to the code. Under exemption 13 there is a clear statement. On third parties' commercial confidences it refers to:
  "Information, including commercial confidences, trade secrets or intellectual property, whose unwarranted disclosure would harm the competitive position of a third party".
  That was clear and simple. Following the juxtaposition of the legacy of exemption 13 with Clause 41 and the quotation from the code which the noble Lord, Lord Lester, has just read out, I saw immediately that there could be some gaps where there would be uncertainty, particularly if it were left very much to the public authority to decide whether to consult the third party. That causes me concern. I could hear that concern reflected in the words read out by the noble Lord, Lord Lester. So it would not be a right of a third party to be notified automatically as soon as a request was made about information which could well be commercially confidential. We know of many occasions in government when that arises and in the past the procedure has been very simple and easy to follow.
  What does cause me concern is that, as is always the case when one tries to set out a detailed position in legislation, it is usually incapable of that detailed application without introducing the sort of complexity which one heard from the noble Lord, Lord Lester, in reading out what should have been a very simple statement but which has been qualified to such an extent that it is now completely ambiguous, in my mind, as to whether or not the third party has that automatic right—
  Lord Lester of Herne Hill: I do not know whether the noble Lord appreciated, from my rather gabbled reading, that where there is a legal right because the information is covered by contract—and of course there has to be consultation as a matter of binding contract—there is no ambiguity about that. Indeed the code makes that clear.
  Lord Hunt of Wirral: I appreciate that. I was talking about the other instances where there is no automatic right. That was causing me some concern, particularly, as the noble Lord will see when he refers back to what he read out, there are a whole series of instances where the third party is not automatically consulted. That does cause me some concern and it leads us back to Amendment No. 70, put forward by my noble friend Lord Cope. It does seem to suggest that this is one way in which the gap could be filled. I am not too sure that my noble friend has confidence that he has finally achieved the exact wording required but certainly this is a move in the right direction, which would do much to underpin that right of the third party. When the noble and learned Lord the Minister responds, it would be very helpful indeed if he could relate this particular amendment to Clause 41, to the original code and to the code which the noble Lord Lester read out in full—which was most helpful—just to make sure it is in the record. If the noble and learned Lord the
  988
  Minister could bring all those aspects together I think it would be a great help and of great assistance to the Committee.
  Lord McNally: Just before the Minister replies, I should like to intervene with some trepidation. I do not know the polite collective term for a group of lawyers, but I am in the midst of them—
  Lord Lester of Herne Hill: A barrackroom of lawyers!
  Lord McNally: Thank you. Perhaps I could approach this in another way. I think the noble Lord is right: this is a key part of the Bill. The point was made earlier that successive governments have moved more and more what were thought of as public sector responsibilities to the private sector. Successive governments have encouraged public/private partnerships which bring public authorities and the private sector into very close co-operation. I served on your Lordships' Select Committee that looked at changes that had taken place in the public service in the 'eighties and 'nineties. It was a dramatic if not a noisy revolution, which I do not think people fully appreciate, on which this Bill will impact.
  My concerns are twofold. The brief we received from the CBI sets out very clearly the risk of disclosure of trade secrets and of commercial information, prejudicing commercial interests. This means that business will be more reluctant to provide information in the first place and perhaps more reluctant to get into bed with the public sector on joint projects which both sides of the Committee want to encourage.
  How do we get round this? It is clear—perhaps it is something that the CBI and the private sector will have to take on board—that doing business with the public sector, which for many companies is very profitable indeed and very attractive, carries with it certain freedom of information responsibilities.
  The kind of culture we are trying to encourage in the public sector as regards the citizen's right to know will spill over into the private sector as well. At the beginning of this debate it was said that one of the intentions behind the Bill was to bring about a cultural change and a shift in the balance of power.
  The relationship between the private and public sectors and how the Bill will interface between them will form extremely important parts of the legislation. From the way the lawyers have been jousting this evening in their efforts to get it exactly right, one can see that that is going to take some considerable skill. That is one reason why I look with such confidence to the noble and learned Lord, Lord Falconer.
  Lord Falconer of Thoroton: This is an important amendment which requires careful consideration. It would add to the Bill a provision specifying that, where a request relates to the commercial interests of a third party, the authority must notify the person whose commercial interests would be affected of the request, tell the third party what information it holds, and give

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  him the opportunity to comment on whether the information is exempt. We are dealing here with a case where the commercial interests of a third party—namely, not the applicant—can be affected by the disclosure.
  There are two possible situations to consider here. The first is where the third party has a legal right to ensure that the information is not disclosed—for example, an enforceable right in contract—in confidence or because it is a trade secret. The Government believe that the right way to deal with this is that such a person should be consulted before any disclosure is made. If, on examination either through the consultation or separately, it emerges that he has a legal right which would prevent disclosure, then no disclosure should be made.
  The Government feel that the best way to ensure that that is put in place in practice is not by reference to detailed provisions in the Act but by a code of practice which sets out a process requiring the relevant public authorities to consult and contact someone, and not to disclose where such a legal right exists. That forms the extract from the code quoted by the noble Lord, Lord Lester of Herne Hill. I am most grateful to him for doing so. For the record, it is the code of practice, paragraphs 19 to 23. Where there is a doubt about it, the code specifically states that consultation should take place where the views of the third party may assist the authority to determine whether information is exempt from disclosure under the Act. Thus, where there is a genuine question about it, the public authority should get in touch with the third party.
  Lord Hunt of Wirral: I apologise for intervening. Will the Minister reflect on the fact that presumably it would be for the public authority to decide? That would therefore be an arbitrary decision taken by the public authority which could compromise the rights of the commercial interests of another party. The third party would not be involved in that decision. It would be a unilateral decision taken by the public authority. Is that not another area which may cause some concern?
  Lord Falconer of Thoroton: So far as concerns the public authority, it is obvious that it must act sensibly and reasonably under the provisions of the code. What is the alternative? The alternative would be that, wherever the authority thought conceivably that the commercial interests of a third party might be affected by disclosure, it would have to consult that third party.
  Perhaps I may cite an example. Suppose that information was sought to be disclosed which would prejudice the interests of a whole range of people in a particular industrial or agricultural field. Is it sensible for the public authority to be put under an obligation to have to consult every single business that runs a particular kind of process against the remote possibility—an extremely remote one—that one of them might have a legal interest? Does every pig farmer have to be consulted before something relevant to the farming of pigs is disclosed? The noble Lord, Lord Carter, makes a noise in relation to that. As the
  990
  Government Chief Whip knows, that would make this part of the Bill effectively unworkable, and it would do so in a way that would provide very little protection in relation to legal rights.
  Lord Lester of Herne Hill: If the public authority acted in breach of contract, trust, confidence, trade secrets and so on, it would be legally liable. Therefore there is no question of it being an arbitrary decision. The public authority is bound by law to comply with these obligations in any event. Or am I mistaken?
  Lord Falconer of Thoroton: The noble Lord is absolutely right. I assumed that the noble Lord, Lord Hunt, was thinking that perhaps public authorities might make a mistake from time to time. They might—but, assuming that they are addressing the matter in good faith, it will not be difficult to identify whether or not there is an arguable trade secret, confidence or contractual claim. The alternative of obliging them to consult everyone—which is the effect of the added clause proposed by the amendment—is not sensible.
  I should make it clear—as the noble Lord, Lord Lester, did by his reading—that the consultation goes wider than simply cases where there is either a legal interest or the possibility of a legal interest. It also includes cases where the public authority thinks that the third party may have something to say that could be relevant to the question of disclosure, even where there is no legal interest.
  That is a sensible process. It sets out what we believe to be good practice; it is practicable. I have no doubt that it is much more sensible to deal with this issue by way of a code of practice on the face of the Bill. It provides the degree of flexibility which is necessary in such a situation. I hope that in the light of my explanation the noble Lord will withdraw the amendment.
  Lord Cope of Berkeley: It has been an interesting debate. However, this remains an important point to which we must clearly give further thought. We shall of course consider some of the points made by the noble Lord, Lord Brennan, in regard to dealing with trade secrets and so on, when we come to the amendments to Clause 41.
  However, coming back to Amendment No. 70, as my noble friend Lord Hunt indicated in his usual polite manner, the drafting of the amendment is not something on which I am relying absolutely. Several points were made in the course of the discussion which indicated ways in which the drafting may be improved.
  The nub of the question is whether it is correct that this matter—on which we are largely agreed—should be in a code of practice or in the Bill, drafted of course in an excellent manner. As we have discussed, there is a wide range of public authorities; there are several pages of bodies, some of which one does not normally think of as being part of government. These public authorities will not be legally bound to follow the code. They are supposed to follow the code of practice, but

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  they are certainly not legally bound to. They might of course be bound by a contract they entered into with the third party concerned, but not all of them will be.
  Not unexpectedly, it has emerged from the debate that the Government believe, as we do, that third parties who are directly affected should be consulted—particularly if there is a question of trade secrets, and so on—but they are prepared to put that provision only in the code of practice and not in the Bill. We shall reflect on the arguments that have been made—
  Lord Lester of Herne Hill: I am grateful to the noble Lord. When the noble Lord reflects, will he take into account the fact that the code creates a legitimate expectation that it will be followed. If it were not followed by a public authority, there would be judicial review. So in that indirect way it becomes legally binding upon all public authorities.
  Lord Cope of Berkeley: That is an additional point for us to consider. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 8 [Fees]:
  9.45 p.m.
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 71:
  Page 5, line 18, leave out ("may") and insert ("shall").
  The noble Lord said: This amendment stands in the name of my noble friend Lord Mackay of Ardbrecknish. Various amendments are grouped with it for discussion. They all concern fees. Amendment No. 71 is not the most important amendment in the group, but it attempts to ensure that the Secretary of State will definitely make regulations regarding fees. I am in no great doubt that the Secretary of State will wish to make such regulations; however, we believe that it should be his legal duty to do so. Most of the amendments concern the detail of how the fees will work.
  Amendment No. 72 attempts to create a presumption that there will not be a fee in most cases and allows for a fee to be charged only in prescribed cases so as to narrow the circumstances in which any fee is payable.
  Amendment No. 73 seeks to place a limit of 10 per cent of the cost of complying with the request on the fee. That percentage is not plucked out of the air. It comes from no less a person than the Home Secretary, who suggested during the course of debate on the Bill in another place that a charge of up to 10 per cent of the cost of supplying the information might be appropriate.
  Amendment No. 74 suggests that fees should be set at a sufficiently low level so as to facilitate access by the public. What we do not want—I am sure that there is no disagreement in this place about this—is public authorities trying to put people off using the Bill by charging large fees. This is another amendment where it would not be right to rely too much on the precise
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  drafting of the matter, although I fancy that I shall have the support of most Members of the Committee in terms of the thought that lies behind it.
  The other amendments standing in the name of my noble friend, Amendments Nos. 101 to 103, suggest that a fee may be charged only in prescribed cases; otherwise no fee is to be payable. All the amendments go to the same general point.
  Amendment No. 85 relates to the refusal of requests. Requests can be refused if the cost of meeting them exceeds the appropriate limit. Ministers have set this at £500. We are all conscious of the answer to parliamentary Questions, that this would be beyond what is reasonable. We have all received answers of that character—and some of us have given such answers from time to time, just as Ministers do at present. So it is not a question of not appreciating what lies behind all this. Of course, it is entirely possible, indeed likely, that some people will ask for information which appears to be legally necessary but which will be impossibly expensive to provide. There may be a good deal of agreement around the Chamber on this point.
  The question of fees is of great importance because we do not want public authorities, and the sort of bodies that will be covered by this legislation, to be burdened with huge costs on account of this so that it becomes quite out of proportion to the value. However, we do not want individuals to be put off using the powers that we are attempting to give them under this legislation by the fact that very large, disproportionate fees are being charged. In one way or another, all these amendments seek to achieve that aim. I beg to move.
  Lord Lucas: I have two amendments in this group. The first is Amendment No. 84. However, as I rather prefer my noble friends' amendment, Amendment No. 85, I shall not cover it in what I have to say. Amendment No. 87 addresses a separate point; namely, the question of periodic requests. Let us suppose that I were to make a habit of asking the Department of Health every month to provide statistics of people who have died from variant CJD. It is, of course, something that the department already provides, but let us imagine that that was not the case. None the less, it would, to my mind, be a perfectly reasonable request to make.
  There are pieces of information with which one wants to build up a periodic pattern as that information changes, and where it is necessary to make such a request. If we are to be faced under this legislation with the cost of complying with such a periodic request being aggregated to the point where it is no longer necessary for the local authority to provide the information because the appropriate limit has been exceeded, I believe that we would be looking in the wrong direction. There is provision in the Bill, as written, for this area to be governed by regulations. I should be content if the Minister could promise me

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  what will be in those regulations to allow reasonable periodic requests for information, such as I have described, to be made.
  Lord McNally: A number of words have been used over the past few hours to indicate how this Bill will be made to work—for example, "simplicity, good faith and common sense". What we are discussing now is another element; namely, cost. As the noble Lord, Lord Cope, said, if the means of gaining access to information were in any way to be a deterrent—if freedom of information was like the freedom to dine at the Ritz; in other words, you could get information if you could afford it—that would be against the spirit of what I hope we all intend to be a revolutionary Bill.
  In their different ways, all these amendments seek reassurance on that point. There is no particular merit in picking them out separately, other than to mention the one that suggests that the actual cost of finding information should not be a final barrier in all cases. Indeed, there are occasions when the costs would justify acquiring the information, even if that process was expensive.
  It has been suggested to us that in other freedom of information Acts there are forms of words that are not so open to using "costs" as an excuse for not providing such information. I take the point made by the noble Lord, Lord Cope. We have all noticed that certain Members in another place table so many Questions obsessively—thank God none of them ever sits on the Liberal Democrat Benches. Indeed, I cannot think of any who do.
  Public authorities have to be protected against such practices. However, we must also ensure that neither initial access nor the response of prohibitive cost is used too easily or too lightly. I rose to speak to this group of amendments in order to hear the Minister's response to the whole approach of making sure that cost is not a deterrent to citizens seeking to use the Bill and to ensure that public authorities do not use it in too cavalier a manner so as not to co-operate with the Bill.
  Lord Hunt of Wirral: I bear a number of scars in relation o charging because when I had responsibility for the code I recall being mercilessly bludgeoned for the photocopying charges of the National Rivers Authority. I can still re-live those moments when I suddenly discovered that an official somewhere had assessed that photocopying charges should be between £50 and £100 per page. I shall never forget it, nor will my officials when I was questioning them afterwards. I had not been fully briefed on the subject.
  I believe my noble friend Lord Cope has raised some very important points here. I follow the noble Lord, Lord McNally, in reflecting on what happens elsewhere. I bear in mind that the cost calculated by officials normally means the marginal cost of locating and retrieving the information, calculated often in quite an antiquated way at rates that do not bear much relationship to today's costings. A number of Freedom of Information Acts require the authorities not to show that the cost has risen above a certain limit, but
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  the onus is on the authority to show that compliance would cause substantial and unreasonable disruption to its work, which in other jurisdictions is found to be a more sensible approach than just the calculation of a simple figure.
  As I understand it, Ministers have already calculated that the appropriate limit will be set at £500. It would be of great assistance to us in responding to these amendments if the Minister were to give examples of how the £500 will be calculated and instances in which he believes a wider range of information might not be justified but a smaller amount might well be authorised at a cost that would be below the limit. Officials who are unwilling to disclose the information might use the £500 limit as an excuse because the request was phrased too widely. I recall from Parliamentary Questions that, on the receiving end, I could often see the way that the Question should have been phrased but fortunately was not. I would not want a member of the public to fall foulof a system in that way. Although I was quite willing for Members on the Liberal Benches in the other place to fall foul of the system in that way., I would not want members of the public to he denied their right to information either under the code as it existed or under this new legislation. I hope that the Minister may be able to respond to that point.
  Lord Brennan: I invite the Minister to clarify the approach that is likely to be taken in these regulations. It seems that they ought to be constructed with great sensitivity for the following reasons. The first is a practical one. In every field of litigation and contact between citizen and state there is a small number of people who find such contact therapeutic. They are called vexatious litigants in the supreme court. I cannot imagine that this Act will not produce a well drilled cohort of such correspondents with government departments. I do not suggest that the regulations should deter them by fee alone, but I think that they should encompass some method of identifying vexatious requests; otherwise, such requests would undermine the proper purpose of the Bill.
  Secondly, Clause 8(4)(a) states that regulations may prescribe,
  "that no fee is to be payable"
  in certain cases. I assume that that will include cases where the applicant for the information cannot afford to pay the fee. I refer to people on income support, people who qualify for legal aid because of their income requirements and so on.
  The third area that causes me more concern is the following. If the limit is to be set at £500—which I applaud—that may well be a gross under estimate of the actual cost of making the appropriate inquiries to meet the request. Perhaps the regulations ought to allow special provision to be made in certain cases. For example, I refer to people who wanted to find out what was actually going on during the BSE saga. The documentation on that issue is enormous and the cost of providing it may well be huge. I am concerned that we should approach such practical considerations now and not be faced with problems later. However,

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  consideration of such expense may engender specious correspondence between government and applicant which is designed to provoke not one request for information but seven or eight in order to increase the individual cost and cover the actual cost, which may well be beyond £500. I concentrate on that point because we must not lose public confidence in the legislation at stage one. For every applicant, stage one will involve asking himself about cost.
  The fourth and last consideration is one on which I may have to invite my noble friend the Minister to write to me; namely, the consequences of the Aarhus Convention which the Government signed two years ago. It deals with access to information on environmental matters and is extremely wide-ranging. It requires government to guarantee such access at reasonable cost and with expedition. One or other of my learned friends may have that convention at their fingertips. I have it at my fingertips only because of the debate that took place the other day. It is an important matter. Which two areas will cause the most concern? I suggest that they are health and safety, which usually involve many documents, and the environment. The regulations must meet that challenge.
  10 p.m.
  Lord Bassam of Brighton: I suppose that my opening line ought to be that costs should not be a determinant with regard to access to information. Then I should add a series of caveats. I have a feeling that my speaking notes will take us in that general direction. It is perhaps worth making the point—parliamentarians will be familiar with this—that cost is a determinant, even in this Chamber and in the other place. However, having said that, I am always impressed by the wide range of information that Members of this Chamber and of the other place can elicit through parliamentary Questions. I note that only yesterday the noble Lord, Lord Lucas, obtained much information on CJD in a Written Answer provided by my noble friend Lord Hunt of Kings Heath. No doubt cost considerations came into the provision of that information, but the public interest of providing that information was more important than cost considerations in that case.
  I turn to government Amendment No. 90. I state my intention to oppose the Question that Clause 14 should stand part of the Bill. The proposed new clause after Clause 11 is consequential on the restructuring of the Bill. It brings together those clauses concerned with access to information which would otherwise be exempt by virtue of the cost of compliance exceeding the appropriate limit.
  This new clause effectively replaces Clause 14 of the Bill as drafted. This makes provision for the charging of fees for public interest disclosures. The Bill provides for a clear duty on public authorities to disclose information in the public interest. There is no need to make specific provision for the charging of a fee for the disclosure of such information. The fee provisions are the same as for the disclosure of non-exempt
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  information. Clause 14 is now redundant. I shall commend that the Committee opposes the Question that Clause 14 shall stand part of the Bill.
  Amendment No. 84, tabled by the noble Lord, Lord Lucas, would require the public authority to inform the applicant whether it held information of the description specified in the request in accordance with Clause 1(1)(a) even if to do so would exceed the cost limit set out in regulations if the applicant were prepared to pay the excess cost. That would give the applicant the right to determine the work priorities of the authority. We take the view that this could be disruptive and detrimental to the work of that authority. That would be the case in particular with respect to a smaller public authority. I gave an example earlier of GPs whose resources would be unlikely to be sufficiently large or flexible enough to adapt to such demands even where the full costs of the additional work were to be recovered.
  I understand the well-intentioned thoughts underlying the amendment. It is designed to prevent the Government and public authorities from limiting the scope of information that should be disclosed by manipulating the fee regulations However, it would create a regime in which authorities could be exposed to unreasonable demands on their resources and the Government would be left with insufficient flexibility to respond quickly and effectively to changing demands or circumstances.
  The parliamentary procedures will ensure that the fees regulations are subject to appropriate scrutiny. For those reasons I hope that the noble Lord will not press the amendment.
  Amendment No. 87 which stands in the name of the noble Lord, Lord Lucas, concerns the Secretary of State's power to make regulations about the appropriate limit on the cost of providing information when two or more requests are made either by one person or by different persons who appear to be acting together. If accepted, the amendment would limit this power to make regulations to situations where requests are closely related and made within a month. We consider that it is more appropriate to deal with this kind of matter in secondary legislation which gives greater flexibility. We believe that the amendment is unnecessary. Again, I invite the noble Lord not to press the amendment.
  Lord Lucas: I agree with the noble Lord that it is better to deal with it in secondary legislation. But can the Minister confirm that the matter will be dealt with in secondary legislation and that the periodic request—I hope that I convinced him that it was entirely reasonable—will not be caught by the regulations?
  Lord Bassam of Brighton: I can confirm that. It will be dealt with in secondary legislation.
  Amendment No. 85, in the name of the noble Lord, Lord Mackay, has three parts. The first part also requires the public authority to confirm or deny whether it held information regardless of the cost of so

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  doing. The second part enables an applicant to appeal to the commissioner where the authority failed to comply with the request under this exemption and would authorise the commissioner to consider such an appeal at his discretion. The third part provides that the commissioner direct that the authority disclose whether it held the requested information and would prohibit any appeal by the authority against that direction.
  New subsection (a) would effectively give the applicant the right to determine the work priorities of the authority and potentially skew the priorities of that authority. I hope that the noble Lord will reflect on that point and not press the amendment.
  New subsection (b) would require the authority to balance the public interest benefit in complying with the request against the cost of compliance where to do so exceeds the appropriate limit. I suggest that the amendment is not necessary. Nothing in the Bill precludes the release of such information. Where a public authority has the power to disclose the information it would be required to consider doing so under administrative law. In considering this, it would have to balance the cost of disclosing with the public interest in doing so. Given that consideration, I hope that the noble Lord will not press the amendment.
  The second and third paragraphs in Amendment No. 85 would provide applicants with a right of appeal to the commissioner when Clause 11 was not complied with. Such rights of appeal would of course be necessary if the substantive effect of the amendment were agreed to. However, the Bill already provides applicants with a right of appeal if a public authority relies on Clause 11 as a reason for non-compliance.
  Amendment No. 85 would also empower the commissioner to direct an authority to comply with a request without giving the authority a right of appeal to the tribunal. Placing such an unchecked power in the hands of the commissioner would be out of line with other provisions in the Bill, which would be untenable. Again, I invite the noble Lord not to move the amendment.
  Amendment No. 86 would place in the Bill a statutory minimum appropriate limit of £500. That is the maximum that the Government proposed, but we believe that it is more appropriate to deal with such matters in secondary legislation rather than in the Bill. As I said previously, secondary legislation provides greater flexibility. We should be able to adjust the limits in the light of experience. In view of the fact that we have already proposed a maximum appropriate limit of £500 for inclusion in such secondary legislation, I hope that the amendment will not be moved.
  Amendment No. 88 would require the Secretary of State to make regulations in relation to costs and the way in which they might be calculated. The structure of the clause effectively imposes that requirement on the Secretary of State, if he wants to take appropriate authorising action. That gets round the need for the amendment, which is unnecessary and should be withdrawn.
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  Amendment No. 89 states the types of costs about which regulation may make provision for the purposes of Clause 11. The amendment requires regulations to be
  "based on the marginal cost of locating the information and of related disbursements".
  That is overly prescriptive, and we have advanced comparable proposals. As with the overall cost limit, the matter is more appropriately dealt with in secondary legislation.
  Amendments Nos. 71 to 74, which were tabled by the noble Lord, Lord Mackay, would specify and limit the circumstances under which a fee may be charged. Amendment No. 71 would impose on the Secretary of State a statutory duty to include in the regulations the matters that are described in paragraphs (a) to (c) of Clause 8(4). Amendments Nos. 73 and 74 would require the Secretary of State to include in the regulation the matters that are referred to in those amendments. The first such provision would set a statutory limit of 10 per cent on the cost of compliance, which may be charged for complying. However, no separate provision is made in respect of actual disbursements, which would include, for example, photocopying and postage. Again, we believe that that matter is best dealt with in secondary legislation.
  Proposed new paragraph (e), which would be created by Amendment No. 74, would introduce a statutory duty to set fees at a sufficiently low level to facilitate access to information by applicants. We are not persuaded that that is necessary. We have maintained throughout that public authorities will bear the bulk of the cost of providing information, and we can reasonably trust them to do so. Our preferred formula is contained in the consultation paper and reflects the provisions of Amendment No. 74. However, the negative resolution procedure would ensure that regulations in relation to fees were not prohibitive. I hope that those amendments will not be moved.
  Amendment No. 72, which would amend Clause 8(4)(a), would require the Secretary of State to prescribe in the regulations the circumstances under which a fee might be charged. We are not convinced that that amendment takes sufficient account of the scope of the legislation. If it were agreed to, it would require the Secretary of State to identify all types of information and the circumstances under which any one of the 50,000 authorities that will fall under the scope of the Bill may charge. We believe that that would be an impossible task. The regulations would be complex, confusing and difficult to interpret. Drawing up such regulations could place unfair financial burdens on the many small authorities that will be covered by the Bill. We want a fair and proportionate system for charging, not one that is over-complex or prescriptive. If not, there is a real risk that authorities will concentrate too much of their efforts on deciding fees and not enough on providing the information requested.
  That brings me to Amendments Nos. 101 to 103. Amendments Nos. 101 and 102 would be similar in effect to Amendments Nos. 72 and 74, but in relation

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  to fees for disclosure in the public interest. We do not want to make over-complex regulations that could undermine the object of the Bill, which is to achieve greater openness. For that reason, we do not think that the amendments should be pressed.
  Amendment No. 103 would add the words "which shall be" in Clause 14(3). I am not convinced that that would add anything to the Bill.
  Amendment No. 90 is a government amendment providing that a public authority may charge for the communication of any information not required under Clause 1(1) because the cost of compliance exceeds the appropriate limit and is not required by law. It sets out that fees may be determined by the public authority in accordance with the regulation. The amendment will enable public authorities to charge for large amounts of information that might otherwise not be disclosed due to economic considerations. It thus ensures greater openness.
  I shall try to deal with the questions that have been asked. The noble Lord, Lord Lucas asked whether periodic requests would be aggregated for the purpose of Clause 11. The short answer is no. The regulations currently in draft will make that clear. We shall place the draft fees regulations in the Library as soon as possible—certainly before Report.
  The noble Lord, Lord Hunt of Wirral, asked how costs would be calculated. That will be set out in the regulations. He also asked whether officials might abuse the £500 limit. Two factors militate against that. First, information that can be released up to £500 must be released. Secondly, the commissioner can assess whether the clause is being properly relied on.
  The noble Lord, Lord Brennan, asked some important questions. I do not particularly want to deal with vexatious litigants and the green ink brigade, but they exist and we are sensitive to their concerns. We are also sensitive to the real concerns of people who are not best placed to seek information using the legislation because of cost considerations. I shall reflect further on the point about the Aarhus Convention.
  10.15 p.m.
  Lord Cope of Berkeley: Once again we have been given considerable food for thought on fees. I shall not respond in detail to the Minister. We shall reflect on the issues in the coming days. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 72 to 74 not moved.]
  Clause 8 agreed to.
  Clause 9 [Time for compliance with request]:
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 75:
  Page 5, line 27, leave out ("subsection (2)") and insert ("subsections (2) and (2A)").
  On Question, amendment agreed to.
  [Amendment No. 76 not moved.]
  Lord McNally Lord McNally moved Amendment No. 77:
  Page 5, line 28, leave out ("section 1(1)") and insert ("sections 1(1) and 13").
  The noble Lord said: I have the pleasure of moving this amendment on behalf of my noble friends Lord Goodhart and Lord Lester. It would replace the unlimited period for disclosing information in the public interest with a 20-day limit. We strongly believe in the amendment. The legislation will work best with good will and common sense, but it is incumbent on us not to leave too many temptations in the way of Ministers or officials. We believe that the Bill as drafted, with a two-stage process over two different timescales, leaves such a temptation. A 20-working day limit is provided for complying with requests in general and an unspecified period, which needs only to be "reasonable in the circumstances", for disclosing exempt information in the public interest.
  We believe that whether or not to disclose should be a single decision and that that decision should not be allowed to trickle out over a prolonged period with no clear end-point. Applicants will be told that information is exempt. That will be followed by a further open-ended wait to discover whether the authority is prepared to release the information on public interest grounds. The provision could be exploited by obstructive authorities and encourage others to relax their standards, resulting in almost unlimited delays and undermining confidence in the legislation.
  There is no reason to believe that consideration of the public interest should be a cause for long, time-consuming delay. If difficulties are encountered in complying with the 20-day period, authorities or Ministers can be open about that. It is possible that a formal request, perhaps from the commissioner, for a further time limit could be drafted into the legislation. I believe that this is where the common-sense provisions should come in.
  However, no overseas freedom of information Act provides extra time for public interest decisions; nor does the UK code, which also contains a public interest test. Home Office figures indicate that currently 92 per cent of code requests are dealt with within the code's 20-day limit, or the tighter limits which departments themselves set. Therefore, we do not believe that this rather loose, open-ended clause should be left in the Bill. It would be a reassuring declaration of intent if Ministers could accept a 20 working day limit.
  Lord Lucas: I thoroughly support the amendment. It seems to me crucially important that we should not have in the middle of the Bill an unlimited timescale which can be exploited by a department going backwards and forwards, trying to find ways in which not to disclose information, or simply taking its time when someone is waiting for information and has every reason to expect that it should be delivered promptly.

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  It is not at all clear to me who effectively will adjudicate the wording in Amendment No. 79:
  "until such time as is reasonable in the circumstances".
  We are talking about information which should be produced within a few days. It seems to me that, if things were being done unreasonably, that type of clause could involve delays of weeks or months in deciding whether the matter which was taking a long time was being reasonably delayed. I do not believe that there is any protection for the citizen. At the very least, a time limit should be set down—not "unreasonably delayed" but possibly "not usually more than" or some such words—to provide a yardstick against which performance could be judged.
  I also agree with the noble Lord, Lord McNally, when he says that there should be only one time limit. There is no reason why the two questions cannot be parallel-processed. If the Government are considering whether a particular piece of information is exempt, they can also consider the question of what would happen if it were exempt. Would there be an obvious public interest in disclosure? One does not have to wait for a decision on whether or not it is exempt in order to decide the second question. The two should be decided together.
  The noble Lord produced the killing piece of information. Even under our present-day, reasonably relaxed arrangements, very few civil servants are properly trained in the use of the code. I believe that only 170-odd have attended the course on how to operate the code. There has not exactly been a major training scheme, but even civil servants operating on their native wit and knowledge have provided 96 per cent of answers to requests for information within the 20-day limit. When we have a fully trained, up-to-the-minute, computerised Civil Service, as the noble and learned Lord, Lord Falconer, promises us, I am certain that we shall be able to do better than that and that there will be no reason why the 20-day time limit should not cover both processes rather than just the one.
  Lord Cope of Berkeley: I have much sympathy with these amendments. Amendment No. 80 in the name of my noble friend Lord Mackay, which leaves out subsection (3), is a provision that allows the Secretary of State to extend the 20 working days to 60 working days; that is to say, to extend it from four weeks to up to 12 weeks in particular cases.
  We all know that public departments can take a long time to reply to letters. Professor C Northcote Parkinson, in his excellent advice which contained a great deal of truth among a great deal of humour, suggested that the proper way to deal with income tax inspectors was to send them a few queries, carefully targeted, so as to calculate how long it took them to reply. The size of the in-tray was measured in days. If one discovered that it took 30 days for a reply to be sent, one should write every 29 days to ensure that one's income tax file went to the bottom of the heap continually and never reached the top! That was one
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  way of pointing out that public officials can take a great deal of time to reply. In a case like that they should not be given too much leeway.
  The lengths of time are expressed in working days and the provision includes bank holidays in any part of the United Kingdom. It appears that in relation to this Bill, St Patrick's Day and other bank holidays that are observed in one part of the kingdom or another all count as non-working days throughout the public service. However, I support some of the thoughts behind these amendments.
  10.30 p.m.
  Lord Bach: I shall deal with Amendment No. 80 first, as it was the last one spoken to by the noble Lord, Lord Cope. I am afraid that the poor old Government cannot win. The Bill as drafted in Clause 9(3), which Amendment No. 80 seeks to delete, mentions a period,
  "not later than the sixtieth working day".
  That is taken straight from an amendment that was moved in another place, which asked that the time be,
  "not later than the sixtieth working day following the date of receipt".
  That amendment was moved by the honourable Member, Mr John Greenway, Front Bench Conservative spokesman on the Freedom of Information Bill. We followed, perhaps stupidly, his amendment and so the words "the sixtieth working day" appeared in the Bill when it came to this House and now the party opposite suggests that those words should go. The Government cannot win.
  There has been plenty of consultation in relation to this Bill, as referred to earlier by the noble Lord, Lord Mackay of Ardbrecknish, but I wonder whet her any consultation has taken place between the Conservative Front Bench in another place and the Conservative Front Bench in this place. It is a gentle point, but I believe it is a fair one to make in the circumstances.
  The provision was amended in another place so as to limit the Secretary of State's power to extend the statutory time limit for compliance with a request. As now drafted, it provides that there should be an upper limit on the Secretary of State's powers to set a different time limit for compliance with an application. The provision in the Bill now reflects concerns expressed in another place that there should be a cap on the time limit which might he set by regulation under this provision. The Government have recognised and addressed those concerns.
  We have no intention to extend the statutory time limit under the regulations, which will be made only in exceptional circumstances. Recognising other concerns expressed during Committee stage that the regulation-making power itself should be subject to close parliamentary scrutiny, regulations under subsection (3) are subject to affirmative resolution. We believe it is necessary for the Bill to retain the power for the Secretary of State to provide for circumstances under which time for compliance may be extended beyond the statutory period of 20 days set out in the legislation.

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  The Bill will apply to some 50,000 public authorities. The Government cannot say at this stage with any certainty that those authorities can, in all circumstances, realistically be expected to comply with all requests within the statutory time limit. If it should become apparent that there is a need to extend the time limit for compliance with requests the Government will be required to justify any proposals at the time. Any regulations laid before Parliament in relation to time for compliance will be subject to full scrutiny by both Houses of Parliament under the affirmative resolution procedure. For that reason, we cannot accept Amendment No. 80.
  We believe that the more serious amendments are Amendment No. 77 and the consequential Amendment No. 100 tabled by the noble Lord, Lord McNally. Amendment No. 77 would bring public interest disclosures within the 20 working day period for compliance. At the moment that period applies only to the initial determination as to whether the authority is obliged to confirm or deny that information is held and to disclose non-exempt information. The Bill provides that public interest disclosure must be made within such time as is reasonable. As Amendment No. 100 is consequential I do not need to describe what it does.
  Under Clause 9(1) an authority has up to 20 working days to comply with Clause 1(1). Where the information requested is in an exempt category, the new clause will require the authority to determine whether the public interest in disclosure outweighs the public interest in maintaining the exemption taking into account all the circumstances of the case. The new clause replaces most of the provisions of Clause 13, and the Government have signalled their intention to oppose that Clause 13 stand part of the Bill when the time comes.
  There are two steps involved in determining whether otherwise exempt information should be disclosed in the public interest. In making such a decision an authority must already have determined that the information is exempt. While this decision must be made promptly, it is conceivable that such a decision can take the full 20 days allowed by Clause 9(1). I offer one possible example. Let us assume that a public authority receives a request for the disclosure of information that it holds which has come from a third party. That third party may have a legal interest in the decision on disclosure, perhaps because of the operation of the common law duty of confidentiality. Under the Bill it is for the public authority to decide whether to disclose all or some of the information, provided that there is an exemption on which it can rely and no overriding public interest.
  The authority may think it right to consult the third party, or those to whom the information relates, or those likely to be affected by the disclosure. The Secretary of State's code of practice under Clause 44 will advise authorities to carry out such consultations. But the relevant interested parties may themselves be unavailable, or the consultation may raise an issue of public interest which the authority must weigh. The
  1004
  amendment would, however, impose a 20 working day limit on such consideration which could leave no time for proper consideration of the public interest and any work that might be necessary if it decided that disclosure was appropriate.
  Moreover, disclosure in the public interest requires an authority to take all the circumstances of the case into account in balancing that interest. Such a decision may be more complex than the original decision as to whether the information is exempt and involve consultation within the authority as well as further consultation along the lines above with those who would be affected by any disclosure. Therefore, we have come to the conclusion that it is impossible to specify any time limit on the taking of such decisions because much will depend on the circumstances of each case. It is necessary, therefore, for the Bill to provide for a "reasonable" period.
  The Government's amendments tabled for Clause 9 will introduce the "reasonable" period provision into that clause by virtue of new subsection (2). This is currently the effect of Clause 13, but, as the Committee knows well, the Government have tabled amendments to restructure the early part of the Bill which will have the effects of deleting Clause 13. New subsection (2A) of Clause 9 reinstates the necessary timing provisions for disclosure in the public interest.
  The Government understand that if time is short, authorities may be more likely to withhold information than disclose it on the basis that where a matter is not properly considered, it is better to be safe than sorry. On the other hand, authorities may decide not to consult those affected by disclosure on the basis that that would take too long. We think we have the matter about right in that the Bill provides for a reasonable limit in order to ensure that decisions are taken soundly. To impose an unreasonable and even impractical time limit would inhibit the culture change that the Government are trying to achieve with the Bill.
  We believe that the amendments, although well meant, would have the effect not only of disadvantaging authorities by imposing an impractical time limit on them but might also disadvantage applicants and others affected by disclosure by causing decisions on the public interest to be taken hastily.
  "Oh", say those who are in favour of these amendments, "that is all very well, but this gives a green light to public authorities not responding". There is a sting in the tail. In order to prevent authorities from stalling, the commissioner has power to issue an enforcement notice under Clause 51(2) or, where she has received a complaint, a decision notice under Clause 49(4), requiring the authority to disclose information in the public interest within a time set out in the notice. That is a safeguard in the Bill against abuse of the lack of a specified deadline on public interest disclosures and should be put in the balance when the Committee decides whether our stance is sensible or not.
  We fear that the amendments would result in ill-considered decisions by authorities and might work against the culture of openness that the Government

  1005
  are attempting to achieve with this legislation. I hope that the noble Lord, Lord McNally, who moved Amendment No. 77, may think that there is something in what I have said and will withdraw his amendment.
  Lord Lucas: I feel that the Government must offer more on this issue. We cannot have this unrestricted time limit without any mention in Amendment No. 79, which is where we find this wording, of any need to get a move on. Such a period as "reasonable in the circumstances" has a very relaxed feeling to it. There is no "as quickly as is reasonably possible"; there is no illustrative time limit.
  The noble Lord, Lord McNally, mentioned the current rate of performance. In those circumstances, it would be quite reasonable to say that it should usually be done within the 20-day time limit allocated to deciding whether or not a decision is exempt, but can be stretched beyond that period. I understand the noble Lord's arguments but they apply to extreme cases. Yes, provision has to be made for extreme cases, but it must be quite clear that it is for extreme cases. There needs to be a yardstick in front of everyone, an expectation that things will be done quickly.
  There is no indication of the point at which one might reasonably start to complain. There is no indication of whether—as I would hope—most things should happen within the original 20 days; whether we should expect an additional 20 days where this is concerned; or whether it should be an additional three months. We must have more clarity. It must be more easily operable by members of the public. Everyone must know what the expectations are. Yes, if we have to allow for exceptions, it must be made clear that those are exceptions and not allowed to become the rule.
  Lord Bach: Before the noble Lord, Lord McNally, decides what to do with the amendment, perhaps I may say that there is a good deal in what the noble Lord, Lord Lucas, says with which we agree. In many cases we agree and trust that the two decisions will be made within the 20 working days. But we cannot accept that that will happen on every occasion; and it will not happen sometimes for good reason. In an earlier intervention the noble Lord asked who will adjudicate on "reasonable" time. The answer in the first instance is the commissioner. She will have the power to assess it, whether from a complaint or not from a complaint. Under Clause 49 she can require decisions to be made if she thinks that an authority is taking too long.
  When the amendment was moved and noble Lords spoke in favour of it no mention was made of the commissioner's powers in this instance. She has a real power to make sure that public authorities do not abuse their position. Of course there is no specific time, but to say within a "reasonable" time is not as loose as the noble Lord indicates.
  Lord McNally: I take on board what the Minister said about the commissioner's powers. They are to a certain extent stable-door-slamming powers and will become active only when abuses become apparent. We
  1006
  are trying to make sure that abuses do not occur in the first place. There is a problem with reasonableness. The noble Lord will have heard of the visitor in the west of Ireland who asked a local whether there was anything in Gaelic equivalent to mañana. He replied, "Nothing with that sense of urgency". Reasonableness quickly equates with mañana unless there is a spur to action.
  At this stage we are willing to withdraw the amendment, but we shall certainly come back to the issue at a later stage. Whatever the Minister may say about other parts of the Bill, we feel that a "reasonable" period is open-ended and open to abuse. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 78 not moved.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 79:
  Page 5, line 35, at end insert—
  ("(2A) If, and to the extent that—

  (a) section 1(1)(a) would not apply but for paragraphs (a) and (b) of section (Effect of exemptions)(1), or

  (b) section 1(1)(b) would not apply but for paragraphs (a) and (b) of section (Effect of exemptions)(2).

  the public authority need not comply with section 1(1)(a) or (b) until such time as is reasonable in the circumstances: but this subsection does not affect the time by which any notice under section 15(1) must be given.").
  The noble and learned Lord said: I beg to move.
  Lord Lucas: In view of what was said in reply to the immediately preceding group of amendments, I really urge the Government not to proceed with this amendment. The idea that we should allow this bottomless pit to be inserted into the time limits in the Bill is inappropriate. I hope that the Government will take the amendment away and think again.
  Lord Falconer of Thoroton: We have already dealt with this point, both in what I said earlier and in what my noble friend Lord Bach has just said. I do not think that it would be at all sensible for us to go over the ground again. It is quite late at night as well—a quarter to eleven—to go through the same arguments. We all know where we stand in relation to the point. Of course we bear in mind what has been said, but the Government's position has been put.
  10.45 p.m.
  On Question, Whether the said amendment (No. 79) shall be agreed to?
  Their Lordships divided: Contents, 48; Not-Contents, 12.

  Division No. 1

  CONTENTS

  Alli, L.

  Bassam of Brighton, L.

  Amos, B.

  Berkeley, L.

  Andrews, B.

  Bernstein of Craigweil, L.

  Archer of Sandwell, L.

  Billingham, B.

  Bach, L.

  Bragg, L.

  1007

  Brennan, L.

  Judd, L.

  Burlison, L.

  Layard, L.

  Carter, L. [Teller]

  Lea of Crondall, L.

  Cocks of Hartclifle, L.

  Lipsey, L.

  Cohen of Pimlico, B.

  Macdonald of Tradeston, L.

  Dean of Thornton-le-Fylde, B.

  McIntosh of Haringey, L. [Teller]

  Evans of Parkside, L.

  Massey of Darwen, B.

  Falconer of Thoroton, L.

  Mitchell, L.

  Farrington of Ribbleton, B.

  Parekh, L.

  Faulkner of Worcester, L.

  Rendell of Babergh, B.

  Fyfe of Fairfield, L.

  Smith of Leigh, L.

  Gale, B.

  Stone of Blackheath, L.

  Gibson of Market Rasen, B.

  Symons of Vernham Dean, B

  Harris of Haringey, L.

  Thornton, B.

  Harrison, L.

  Turnberg, L.

  Hayman, B.

  Watson of Invergowrie, L.

  Hollisof Heigham, B.

  Whitaker, B.

  Hunt of Chesterton, L.

  Williams of Mostyn, L.

  Hunt of Kings Heath, L.

  Woolmer of Leeds, L.

  NOT-CONTENTS

  Attlee, E.

  Northesk, E.

  Cope of Berkeley, L.

  Norton of Louth, L.

  Glentoran, L.

  Park of Monmouth, B.

  Henley, L. [Teller]

  Roberts of Conwy, L.

  Lucas, L. [Teller]

  Shrewsbury, E.

  Northbrook, L.

  Willoughby de Broke, L.

  Resolved in the affirmative, and amendment agreed to accordingly.
  10.50 p.m.
  [Amendment No. 80 not moved.]
  Clause 9, as amended, agreed to.
  [Amendment No. 81 not moved.]
  Clause 10 [Means by which communication to be made]:
  Lord Lucas Lord Lucas moved Amendment No. 82:
  Page 6, line 15, leave out from beginning to ("the") and insert ("a form specified by").
  The noble Lord said: In moving Amendment No. 82 I shall speak at the same time to Amendment No. 91, which has been moved from a previous grouping, and Amendments Nos. 104 and 125.
  The amendments concern our Internet future and the way in which the Bill will operate. It will come into force at about the same time as our 2005 Internet government and it seems to me that we should draft the Bill with the requirements of that kind of medium and culture in mind.
  Amendment No. 82 relates to the wording of Clause 10. At the moment, an applicant has a right to express a preference for a copy of the information in permanent form or in another form acceptable to him. I do not consider that wording to be clear enough. The amendment substitutes the words "a form specified by" the applicant.
  If I wanted information in electronic form, as I would do, I should—we all should—be able to expect electronic information under an Internet government. I do not want to be fobbed off with a paper copy that I can make no good use of. It is quite reasonable to ask for the information in electronic form.
  The public authority has to comply with such a request only "so far as reasonably practicable". If I ask for information in a form which is not practicable for the public authority, it does not have to comply with my request. But I should have a reasonable expectation that the information will be provided in the form specified by me if that is reasonably practicable. The amendment seeks to insert a better formulation of the duty which a public authority should be under.
  Amendment No. 91 addresses the question of copyright, as do Amendments Nos. 104 and 125. If you acquire information in electronic form under the Freedom of Information Act, you will want to communicate that information. You will want to put it on your website and pass it on to other people. As currently practised by the Government, copyright is a considerable obstacle to that. It has been decaying slowly over the past few years, and this year we have at last the relinquishment of copyright in the schools performance tables by all four parts of the United Kingdom. It has been a long time in coming, but people are now free to reproduce, analyse and make use of that information on the Internet and to provide it in the way that they want to people interested in UK schools.
  But this is a much more general problem. There is a great deal of information out there which is subject to Crown copyright merely because it is in a publication in some form or another. To try and impose that copyright in a web-based world is not sensible or feasible. Indeed, to tell someone, "Yes, you can have this information under the Freedom of Information Act but you cannot publish it"—which, in Internet terms, means you cannot tell anyone else about it because almost all Internet communication amounts to publishing—is a negation of what the Freedom of Information Act should be about.
  The effect of Amendment No. 91 would allow public authorities to charge a fee where copyright is involved; Amendment No. 104 seeks to give the applicant the right to publish, subject to fees; and Amendment No. 125 concerns the effects of these various matters on Clause 19. It states that information is not reasonably available if it is not available in electronic form; and that information is not reasonably available if it is not free to be published on the Internet.
  There may well be better ways of achieving these aims. It may be that this is an area which is still a matter of controversy within the Government. I hope that the Minister will be able to bring us up to date on the Government's thinking and perhaps give a reassurance that these are problems that the Government intend to address in the course of developing full electronic government by 2005. If that is the case, I hope that he will also be able to show us how these matters are dealt with in the wording of the Bill as drafted, so that when decisions are taken on this matter we shall not need to return to primary legislation but can deal with it in secondary legislation—if indeed any legislation is necessary. I beg to move.
  11 p.m.
  Lord Cope of Berkeley: I have sympathy with my noble friend's amendment, and also with the points that he makes about copyright. However, I rise to draw attention to Amendment No. 83, which specifies that Braille and large print can be used in responding to an applicant.
  It is important that the Government should make clear their attitude to this. The amendment is not an absolute insistence on all information being available in Braille; it is governed by the later provision about being "reasonable in the circumstances". Nevertheless, the amendment draws attention to the needs of those who require information in Braille or large print. The amendment was tabled in order to draw out the Government's intentions.
  Lord Falconer of Thoroton: The intention of Amendment No. 82 is to ensure that an applicant should always be able to require that information is supplied to him or her only in his or her preferred format, to include electronic format—which I believe is what the noble Lord, Lord Lucas, has particularly in mind. The major way of seeking to achieve that is to delete the words "in permanent form". But that makes no difference to the construction of the provision. If those words are deleted, the right of the applicant is to have the material provided to him in a form that is acceptable to him so far as is "reasonably practicable". Getting rid of the words "in permanent form" would not change that at all; even if they remained in the provision, the right would be the same. So there is no real difference between the Government and the noble Lord, Lord Lucas, in that respect.
  That applies equally to Amendment No. 83. Again, the applicant is entitled to receive information in a form that is acceptable to him or her so far as is "reasonably practicable". If it is reasonably practicable to provide the information in Braille or large print, it will be so provided if that is what the applicant requests. It would be wrong to make special provision for that sort of format because there may be other formats of a similar sort and there is no need simply to provide for one. Again, the requirements of the noble Lord, Lord Lucas, are met.
  Amendment No. 104 would have the effect that an applicant would be able to publish any information received by him as a result of a disclosure under the Bill, subject to the payment of any fee specified under regulations made under Clause 14 or Clause 19 as amended. The entitlement to publish such information would include publication in print, on the Internet, or by any other means.
  The noble Lord made clear that his Amendment No. 104 is intended to ensure that disclosure of information by virtue of Clause 1 of the Bill incorporates a waiver in respect of the applicant of intellectual property or copyright rights in the information, subject, of course, as the noble Lord acknowledges, to the payment of a fee. It was never the Government's intention that FoI legislation should result in a transfer or other weakening of existing
  1010
  intellectual property or copyright protections. The Government recognise the importance that modern technology now places on the effective exploitation of publicly held and available information. That applies not just to FoI information but to all government published information. They are considering separately how publicly held information may be most effectively made available for commercial or other exploitation without putting at risk the question of copyright and the status and effectiveness of those public bodies such as the Ordnance Survey which operate under a trading fund regime.
  The noble Lord asked what the developments are on the issue. As noble Lords know, most central government information is subject to Crown copyright. The regulation and licensing of Crown copyright rests with the Controller of HMSO. The management of Crown copyright has been the subject of a wide-ranging review process. Following consultation with private and public sector interests, a simplified and streamlined system for licensing Crown copyright was announced by the Government on 6th September. An on-line click-use pay class licence will provide a mechanism covering the re-use of a wide range of government information which is quick and simple. Charging will be based on a marginal cost model, which will in cases where information is published officially mean a nil cost to the user. Other principal benefits address the demand for a one-stop shop approach to the licensing of government information, so avoiding the need to negotiate separately across government with individual departments and agencies. Therefore, we are addressing these issues in a much wider way than simply in relation to freedom of information.
  Lord Lester of Herne Hill: Can the Minister say whether similar liberalisation will occur in relation to parliamentary copyright, or does this apply only to Crown copyright? Perhaps the noble and learned Lord would like to consider the matter at a later stage. It is very important because of the fact that the property with which we are concerned—the parliamentary copyright—ought to be public property and not the property of these Houses.
  Lord Falconer of Thoroton: I do not know the answer. Off the top of my head, I suspect that Crown copyright is a matter for the executive, whereas parliamentary copyright will be matter for the parliamentary authorities. I do not know if that is the right answer. I shall therefore check on the position and write to the noble Lord in that respect.
  Lord Lester of Herne Hill: I raised the matter because in Australia and the United States there are special exemptions to deal with the situation. It is a very important issue. I realise that it may not be within the scope of Government's power, but I should be grateful if the matter were clarified at some point.
  Lord Falconer of Thoroton: The Clerk at the Table nodded when I said what I said. Therefore, the noble Lord can take that as an indication that I may be in the right area.

  1011
  Amendment No. 125 would introduce two new subsections to Clause 19. The first of these would have the effect that a public authority would not be able to claim an exemption from disclosure of requested information on the grounds that the information was exempt because it was already "reasonably accessible" if access to that information was not in an electronic format "reasonably" requested by the applicant. The second subsection of the amendment would provide that information is not considered to be reasonably accessible if the applicant were not free to publish that information, subject to the payment of a fee.
  As to the first of these proposed new subsections—namely, that it should not be treated as "reasonably accessible" if it is not available in electronic format—this is presumably intended to ensure that a public authority would not be able to avoid providing information in the applicant's preferred electronic format simply because that information may have been previously published in another format and be reasonably accessible in that format. No similar provisions are proposed in respect of requests for information already reasonably accessible but which an applicant may wish to receive in a different but non-electronic format.
  Therefore, the noble Lord is suggesting a special regime to apply where it is reasonably accessible but not in electronic form. Nevertheless, Clause 19 would not apply. It would result in public authorities being required to carry out considerable additional work in respect of information that they had already made available in the public domain and could give either an applicant or a pressure group the power potentially to disrupt the work of an authority by making excessive and unreasonable demands for information to be converted into a preferred data format. So at present we are not attracted to the proposal in the first part of this amendment.
  Again, as regards the second subsection, in which an applicant would be free to publish such information subject to the payment of a fee, I believe that I have already dealt with that in my remarks. That deals with all the amendments tabled by the noble Lord for this evening, except Amendment No. 91 which seeks to make provision in the Bill for a public authority to charge an applicant where that applicant is seeking to publish information disclosed to him under the Bill where copyright of that information is held by the authority. The effect of the amendment would be to impose a charge for the transmission of the information. That is already provided for in Amendment No. 90. Therefore no further amendment is required. I would like to make it clear that in so far as his amendment supposes a right to get through copyright on the payment of a fee, that would not be permissible. In those circumstances I invite the noble Lord to withdraw his amendments.
  Lord Lucas: I am grateful for those replies. The Minister has given comfort in respect of at least half of that for which I was looking. I should be grateful if his officials would send me a copy of that September
  1012
  document because it is pretty vital to the consideration of the noble and learned Lord's replies that I understand what the Government are proposing in this area.
  So far as my first amendment to Clause 19 is concerned, I am disturbed by the implication that if, as apparently happens, government agencies which have published their 1998 annual reports in text and have electronic copies will still be able to refuse to provide applicants with an electronic version because the paper version has been published. I do not find that a satisfactory situation. I accept that, as the noble and learned Lord says, my wording is not perfect, and I will read what he has said. I hope that he does not mean that he regards that situation as satisfactory, certainly not come the year 2005 and electronic government. In respect of particular formats that may be fine. I can see the difficulty that it must not be possible for people to refuse to provide information on the grounds that something inherently unsatisfactory is out there in the public domain. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Cope of Berkeley Lord Cope of Berkeley had given notice of his intention to move Amendment No. 83:
  Page 6, line 15, at end insert ("including Braille and large print").
  The noble Lord said: It is extremely tempting to press this amendment in order to celebrate the paralympics, but I shall not move it.
  [Amendment No. 83 not moved.]
  Clause 10 agreed to.
  Clause 11 [Exemption where cost of compliance exceeds appropriate limit]:
  [Amendments Nos. 84 to 89 not moved.]
  Clause 11 agreed to.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 90:
  After Clause 11, insert the following new clause—

  FEES FOR DISCLOSURE WHERE COST OF COMPLIANCE EXCEEDS APPROPRIATE LIMIT
  (" .—(1) A public authority may charge for the communication of any information whose communication—

  (a) is not required by section 1(1) because the cost of complying with the request for information exceeds the amount which is the appropriate limit for the purposes of section 11(1) and (2), and

  (b) is not otherwise required by law,

  such fee as may be determined by the public authority in accordance with regulations made by the Secretary of State.
  (2) Regulations under this section may, in particular, provide—

  (a) that any fee is not to exceed such maximum as may be specified in, or determined in accordance with, the regulations, and

  (b) that any fee is to be calculated in such manner as may be prescribed by the regulations.

  (3) Subsection (1) does not apply where provision is made by or under any enactment as to the fee that may be charged by the public authority for the disclosure of the information.").
  The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
  [Amendment No. 91, as an amendment to Amendment No. 90, not moved.]
  On Question, Amendment No 90 agreed to.
  Clause 12 [Vexatious or repeated requests]:
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 92:
  Page 7, line 8, leave out from beginning to ("to") and insert ("Section 1(1) does not oblige a public authority").
  The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
  On Question, amendment agreed to.
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 93:
  Page 7, line 9, at end insert—
  ("( ) It shall he lawful for a public authority to apply to the Information Tribunal for an order that an applicant who habitually and persistently requests information without any reasonable grounds for such a request is a vexatious applicant.").
  The noble Lord said: We come to the question of vexatious applicants. Those of us who have served in another place know exactly the sort of people we have in mind, who can become very difficult. I do not think that any of us would want to take out a provision of this character. But the question is how a vexatious applicant should be defined and identified. The proposal in the Bill is that it is someone who makes a repeated request. There are some people who deliberately and quite legitimately make repeated requests. Journalists following up a story will sometimes come back with another question a month or two later and may pursue it for some months if a situation is developing. The same is true of other people.
  Therefore, we have suggested in Amendment No. 94 that the current test should be deleted and in Amendment No. 93 that a public authority should be able to apply to the information tribunal to seek that a particular individual should be regarded as vexatious for this purpose. This matter is worthy of consideration. I beg to move.
  11.15 p.m.
  Lord Bach: I do not know whether the noble Lord wishes to speak also to Amendment No. 94.
  Noble Lords: He mentioned it.
  Lord Bach: In that case I shall reply to it briefly.
  Lord Cope of Berkeley: Amendment No. 94 seeks to delete the current test. Amendment No. 93 seeks to insert a new test.
  Lord Bach: Amendment No. 94 would delete Clause 12(2) which allows authorities to refuse a request if the same applicant had recently been supplied with the same or substantially similar information. The removal of this subsection could allow unreasonable burdens to be placed on authorities by requiring them
  1014
  to respond to repeated requests from the same applicant for the same information in all circumstances.
  Such a provision runs the danger of hampering the carrying out of the functions of the authority concerned, particularly in the case of a small authority. This is not the aim of the Freedom of Information Bill, and would be damaging to the cultural change which we aim to encourage in the public sector. The clause is drafted so that whether an authority has to comply with a repeated request will depend upon what is reasonable in the circumstances.
  By way of illustration, if the authority is small or if the cost of providing the information is large, then it may be very burdensome indeed to require an authority to provide the same information to the same applicant once it has already done so. However, in other circumstances, say for relatively simple information provided by a large organisation, the information ought to be provided. Furthermore—the noble Lord, Lord Cope, may consider that this is important—if the information is of a sort which could be expected to change rapidly, a "reasonable interval" could be a matter of weeks, or even days. This would cover the situation, for example, of a journalist making requests say, to a local authority. Therefore, the provision provides a safeguard for authorities, but also takes account of the rights of applicants by turning on what is reasonable in the circumstances. It should be noted that the commissioner will, of course, be able to arbitrate on what is reasonable and what is not, and I am positive that she will ensure this provision is not abused. I therefore ask the noble Lord to withdraw his amendment.
  As the noble Lord said, Amendment No. 93 seeks to insert a new test. The effect of this amendment would be to allow authorities to apply to the Information Tribunal for an order stating that an applicant who habitually and persistently requests information without any reasonable grounds for such a request is a vexatious applicant. This would be an additional basis on which an application need not be complied with, over and above that contained in subsection (1) of this clause.
  This amendment raises two issues. In the first place it removes the obligation from authorities to comply not only with vexatious requests, but vexatious applicants. This is a significant shift. The notion of a "vexatious request" in subsection (1) of Clause 12 is intended to capture such things as supplementary requests from the same individual for further and further clarification of an original request beyond the point where any further information could reasonably be provided. In this case, the request can be said to be vexatious because no further information can be supplied.
  The notion of a vexatious applicant—which the amendment seeks to add—on the other hand requires the authority to come to a conclusion as to the motives of the applicant: in the words of the amendment, whether the applicant has "reasonable grounds" for

  1015
  making the request. But what would constitute reasonable grounds—that the applicant had an interest, or needed to know the information?
  This Bill will give to people for the first time a statutory right to information. The idea that people have to establish an interest or need to know the information before they have the right to request the information undermines the reasoning behind a general right of access. The Bill is intended to end the "need to know" culture. The amendment would introduce it again by the back door. The Government's proposals will create a right of access which we hope will be "applicant blind". The Bill does not empower authorities to scrutinise an applicant's reasons for making a request. We believe that the amendment would fatally undermine this important principle.
  Lord Lester of Herne Hill: I am grateful to the Minister for giving way. I think that it follows from what he said but I want to draw attention to the report of the Select Committee on the European Union on public access to EU documents, published on 25th July. In paragraph 139 it dealt with this very problem. I served as a member of that committee. I want to clarify whether there is agreement between the committee and what the Government now say. We were there dealing with the same problem of vexatiousness and so on. The report states that a distinction can be drawn between repeat requests and requests for large documents for genuine and legitimate reasons and applications which are vexatious. If the applicant is prepared to pay the costs, repetitive costs should not be automatically rejected.
  Am I right that that is the position the Government take on this Bill?, Provided that the applicant is prepared to pay, the mere fact that there are repeated requests should not be regarded as vexatious in itself. Perhaps it is a matter that needs to be considered.
  Lord Bach: The answer is, "not of itself". We are not precisely on all fours with the views of the Select Committee. I am grateful to the noble Lord for reminding me of them. It is some time since I read that paragraph; I do not recall it well at this hour of night. The Government's position is slightly different. It would be worth comparing what I have said and the view of the Select Committee.
  It may be that an applicant will make requests to authorities which could be inconvenient or embarrassing. However, as long as the requests are properly formulated the authority should be obliged to comply with them, subject to the conditions and exemptions carefully set out in the Bill. These already pay sufficient regard to the practical and commonsense needs of authorities in relation to the form of the application, the fees they may charge—the noble Lord, Lord Lester, spoke about that—the means by which the information is to be communicated, the time limits for communicating
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  information, and providing appropriate exemptions for sensitive information. We do not believe that there is any need for this further provision.
  The amendment raises two issues. The second concerns the effect of any tribunal's order. What effect would such an order have? Would it mean that the authority could disregard all requests the individual made? The amendment does not make that clear. However, in any case an individual could conceivably make numerous requests which might properly be regarded as vexatious, but the authority should not be released from its duty to respond to requests of substance. That is an important principle. By branding an applicant "vexatious" the amendment would allow an authority to disqualify all requests an applicant made regardless of their individual formulation. That is why we believe that it is important that the "vexatious" applies to the requests and not to the person.
  It may be that this power to apply to the tribunal is intended to prevent authorities abusing the provision. However, if that is so it is unnecessary. The Bill already allows applicants who have made requests that an authority regards as vexatious to complain to the information commissioner and, if still dissatisfied, appeal to the same tribunal. This will ensure that authorities do not wrongly apply the provision in Clause 12. I believe that in this instance we have got it right. I invite the noble Lord to withdraw the amendment.
  Lord Cope of Berkeley: This is an issue we must consider further with, in this case, the Law Society of Scotland which suggested the precise wording of Amendment No. 93. However, for the moment, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 94 not moved.]
  Clause 12, as amended, agreed to.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 95:
  After Clause 12, insert the following new clause—

  SPECIAL PROVISIONS RELATING TO PUBLIC RECORDS TRANSFERRED TO PUBLIC RECORD OFFICE, ETC
  (" .—(1) Where—

  (a) the appropriate records authority receives a request for information which relates to information which is, or if it existed would be, contained in a transferred public record, and

  (b) either of the conditions in subsection (2) is satisfied in relation to any of that information.

  that authority shall, within the period for complying with section 1(1), send a copy of the request to the responsible authority.
  (2) The conditions referred to in subsection (1)(b) are—

  (a) that the duty to confirm or deny is excluded only by a provision of Part II not specified in subsection (3) of section (Effect of exemptions), and

  (b) that the information is exempt information only by virtue of a provision of Part II not specified in that subsection.

  (3) On receiving the copy, the responsible authority shall, within such time as is reasonable in all the circumstances, inform the appropriate records authority of the determination required by virtue of subsection (3) or (4) of section (Decisions relating to certain transferred public records).
  (4) In this Act "transferred public record" means a public record which has been transferred—

  (a) to the Public Record Office,

  (b) to another place of deposit appointed by the Lord Chancellor under the Public Records Act 1958, or

  (c) to the Public Record Office of Northern Ireland.

  (5) In this Act—
  "appropriate records authority", in relation to a transferred public record, means—

  (a) in a case falling within subsection (4)(a), the Public Record Office,

  (b) in a case falling within subsection (4)(b), the Lord Chancellor, and

  (c) in a case falling within subsection (4)(c), the Public Record Office of Northern Ireland;

  "responsible authority", in relation to a transferred public record, means—

  (a) in the case of a record transferred as mentioned in subsection (4)(a) or (b) from a government department in the charge of a Minister of the Crown, the Minister of the Crown who appears to the Lord Chancellor to be primarily concerned,

  (b) in the case of a record transferred as mentioned in subsection (4)(a) or (b) from any other person, the person who appears to the Lord Chancellor to be primarily concerned,

  (c) in the case of a record transferred to the Public Record Office of Northern Ireland from a government department in the charge of a Minister of the Crown, the Minister of the Crown who appears to the appropriate Northern Ireland Minister to be primarily concerned,

  (d) in the case of a record transferred to the Public Record Office of Northern Ireland from a Northern Ireland department, the Northern Ireland Minister who appears to the appropriate Northern Ireland Minister to be primarily concerned, or

  (e) in the case of a record transferred to the Public Record Office of Northern Ireland from any other person, the person who appears to the appropriate Northern Ireland Minister to be primarily concerned.").

  The noble and learned Lord said: The amendments are intended to deal with the relationship between the Public Record Office and originating departments that handle requests under the Bill.
  The Public Record Office and the Public Record Office of Northern Ireland are public authorities under the terms of the Bill, which therefore gives rights of access to all of the information that is held by those offices. It also recognises the 30-year rule by disapplying certain exemptions after 30 years. The amendments involve the relationship between the Public Record Office or the Public Record Office of Northern Ireland and the public authority from which the information that was placed in the relevant record office came. Clearly, departments and public authorities continue to have an interest in public records that they transfer to a record office, especially when the records have not been designated as open on transfer. The amendments are necessary to give the Bill maximum clarity in this context.
  Amendment No. 95 deals with the situation in which the appropriate records authority, such as the Public Record Office, receives a request for information that is contained or, if it existed, would be contained, in a transferred public record. When a non-absolute exemption applies, the appropriate records authority shall send a copy of the request to the responsible authority—that is, the public authority from which the documents or information originated—within the period for complying with Clause 11. After that, the responsible authority shall apply to the appropriate records authority within a reasonable time giving its decision about the public interest test and confirming or denying the information as held. That should be done in relation to disclosure under the requirements of subsections (3) and (4).
  Amendment No. 333 will apply to information that is contained in a transferred public record that has been designated as closed by the responsible authority. In that situation, the requirement is that before a decision is made about whether an exemption applies, the originating public authority must be consulted. If a non-absolute exemption applies, it is, as with Amendment No. 95, for the original public authority to decide whether the public interest requires disclosure.
  Subsection (5) of the amendment will require that the responsible authority—that is, the authority that sent the matter to the record office in the first place—must consult the Lord Chancellor before determining that the public interest does not require disclosure. That provision reflects the Lord Chancellor's role in relation to public records and it works as a further guarantee of openness.
  Amendment No. 105 clarifies the minutiae of the way in which the clause will work and seeks to ensure that it fits with other amendments concerning public records. It does not represent a change in policy.
  Amendment No. 316 will allow responsible authorities that have decided that there should not have been disclosure but which have been overturned by the information commissioner to appeal against the conclusion of the information commissioner. That is because those bodies have an interest in resisting the conclusion of the information commissioner.
  The amendments make redundant Clause 65, as it is currently drafted. I hereby formally give notice that I shall oppose the continuation of that provision in the Bill.
  Amendments Nos. 357, 362, 363 and 364 provide definitions for the various authorities concerned, and Amendment No. 330 is consequential on the amendments that will restructure the right of access. I beg to move.
  Lord Lester of Herne Hill: I seek clarification on two matters. First, paragraph 6.7 of the White Paper stated:
  "So far as criteria for withholding documents for longer than 30 years was concerned, the over-riding presumption would be that all records preserved for historical reasons would be made available to the public at 30 years".

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  It went on to explain that the 1993 White Paper on open government laid down the strictly defined criteria that must be met if information is to be withheld from the public for longer than 30 years. The Government continued:
  "As part of our general approach to giving access rights a statutory basis, we propose to incorporate these criteria into statute so that they have the same status as the tests governing access to current information".
  My first question is whether that is reflected in the Bill. I do not ask for an answer at this hour this evening, but I am concerned that the overriding presumption should be, as the White Paper promised, that nothing beyond the 30-year rule should normally apply and that the split criteria of the Bill will apply in this case.
  My second point is about timing. The Lord Chancellor's draft code has helpfully been placed in the Library. On themanagement of records under freedom of information, paragraph 11.3 in part 2 says:
  "In reviewing records for public release, authorities should ensure that public records become available to the public at the earliest possible time in accordance with the Freedom of Information Act 2000".
  It does not say within a reasonable time in all the circumstances but at the earliest possible time. Again, I do not expect an answer this evening but we may have to return to the issue. We need to be satisfied that there will be a speedy requirement in this area, which mainly affects historians and others concerned with historical documents.
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  If the Minister does not have an immediate answer, I should be most grateful if he would reflect on those two issues: the strictness of the criteria and the timing.
  Lord Falconer of Thoroton: I shall reflect on those issues. I can tell the noble Lord what I think the answer is, subject to checking. The amendments do not relate to the historical exemption, if that is the right word. That is dealt with in Clause 62, which removes a huge number of exemptions from non-disclosure as a result of the material concerned being a historical record that satisfies the 30-year rule. I do not know whether that satisfies the noble Lord. I shall certainly reflect on whether it complies with what the White Paper said, but I think that it does.
  The noble Lord referred to paragraph 11.3 of the code of practice on the review and transfer of public records, which says:
  "In reviewing records for public release, authorities should ensure that public records become available to the public at the earliest possible time in accordance with the Freedom of Information Act 2000".
  That refers to the age of the records, encouraging release before the expiry of the 30 years. It does not deal with time limits within the freedom of information regime. I hope that that clarifies matters.
  On Question, amendment agreed to.
  Clause 13 [Disclosure in public interest]:
  [Amendment No. 96 not moved.]
  Lord Bach: I beg to move that the House do now resume.
  Moved accordingly, and, on Question, Motion agreed to.
  House resumed.
  House adjourned at twenty-six minutes before midnight.

Official Report of the Grand Committee on the Fur Farming (Prohibition) Bill
Tuesday, 17th October 2000.
The Committee met at half past three of the clock.
[The Deputy Chairman of Committees (Lord Strabolgi) in the Chair.]
The Deputy Chairman of Committees (Lord Strabolgi): Before I put the Question that the Title be postponed, it may be helpful to remind your Lordships of the procedure for today's Committee stage. Except in one important respect, our proceedings will be exactly the same as in a normal Committee of the Whole House. We shall go through the Bill clause by clause; noble Lords will speak standing; all noble Lords are free to attend and participate; and the proceedings will be recorded in Hansard.
The one difference is that the House has agreed that there shall be no Divisions in the Grand Committee. Any issue on which agreement cannot be reached should be considered again at the Report stage when, if necessary, a Division may be called. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.
I should also explain what will happen if there is a Division in the Chamber while we are sitting. This Committee will adjourn as soon as the Division Bells are rung and then resume after 10 minutes.
Title postponed.
Lord Monson: I am not, of course, privy to discussions between the usual channels—I never have been and am never likely to be—but I had always understood that Bills suitable for discussion in Grand Committee in the Moses Room were confined to Bills which are relatively non-contentious in the political sense but highly technical or detailed. The Data Protection Bill and the Transport Bill are cases in point. This Bill, however, does not fall into either of those categories. It is highly contentious politically and not particularly detailed technically. I wonder, therefore, whether I could have an explanation as to why we are following this procedure rather than having a Committee stage on the floor of the House.
The Deputy Chairman of Committees: This is not really a matter for me. But as the noble Lord has seen fit to intervene in this way, it may be helpful if I tell him that this Motion was agreed by the House after having been agreed by the usual channels.
Clause 1 [Offences relating to fur farming]:
Earl Ferrers Earl Ferrers moved Amendment No 1:
Page 1, line 5, after ("animals") insert ("other than rabbits or moles").
The noble Earl said: I beg to move Amendment No 1, which is grouped with Amendments Nos. 2, 4, 5 and 6. I must apologise to the Committee and indeed to the noble Baroness, Lady Hayman, that unfortunately I was unable to be present at Second Reading. I apologised to the noble Baroness afterwards and said that I hoped that that would not mean that I should be unable to participate in the Committee stage. She assured me that that was not so. However, I did not want her to think that I had forgotten about it because I did not speak at Second Reading, nor that I was, like Banquo's ghost, coming to haunt her. However, my name appears on the Marshalled List with uncomfortable regularity. These are important matters in many ways so it is quite right that we should seek the Government's view upon them.
The first amendment would read that a person is guilty of an offence if he keeps animals solely or primarily for slaughter for the value of their fur, other than rabbits or moles. Rabbit farming is carried out by a considerable number of people and it would be absurd if those people who sold their pelts were to fall within the ambit of this Bill. The amendment of my noble friend, Lord Luke—Amendment No. 2—deals with that in greater detail and I shall leave him to deal with that.
It is possible for the price of rabbit meat to go down, in which case the value of pelts would exceed the value of the meat and, therefore, the rabbit farmer would find himself convicted, being fined up to £20,000 and his animals having to be destroyed. When the price came up, he would be legal again. But of course he would not have any animals. Therefore, it would seem to me to be right to exclude rabbits in the Bill.
Moles are rather a different matter. Moles do damage to grassland and there are such things as mole-catchers whom many people employ to catch their moles. The mole-catchers, being very prudent people, make sure that there is a good stock left for the following year. So they could be accused of fur farming, because they catch the moles, strip them of their pelts and then sell the pelts. Some people are lucky enough to have moleskin waistcoats, moleskin trousers and even, I believe, moleskin hats.
What happens if a mole-catcher is catching moles on somebody's land and is accused by the Bill of indulging in fur farming? After all, that is why he does it. He does not do it pro bono publico; he does it to farm the pelts. Does he get fined £20,000? What happens if he does it on 10 farms? Is he caught 10 times and fined £200,000? Of course that is absurd. But if the words of the amendment were included in the Bill, it would make it much clearer and everyone would know where they were.
Amendment No. 2 is similar to Amendment No. 1 and I invite my noble friend Lord Luke to speak on that, with which I am sure I shall agree and, if I do not, I shall take the opportunity to tell the Committee later.
Amendment No. 4 refers to reptile skins and says,
"In this section 'fur' does not include skins used for leather or reptile skins".

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This is a matter for clarification. I am sure the noble Baroness will say that fur is not a skin but, of course, it is a skin. We should not regard the taking of the skin of a mink so reprehensible when we take the skin of cows and use it as shoes, and we take the skins of crocodiles and apparently make them into ladies' handbags—I do not know whether the noble Baroness has a crocodile skin handbag or even a pair of crocodile skin shoes.
So the noble Baroness may say that furs are not the same as skins. But the Oxford English Dictionary says,
"The short, tine, soft hair of certain animals … growing thick upon the skin".
So when we remove the skin of a cow, we remove it plus its hairs; when we remove the skin of a pig, we remove it plus its hairs; when we remove the skin of a mink, we remove it plus its hairs. The only difference is that the density of the hairs on the skin of the mink is such as to make one call it fur. Therefore, it ought to be perfectly clear that this does not include the skins used for leather or of reptiles.
We turn to Amendment No. 5, which seeks to clarify whether the prohibition applies to animals which are imported into the country for immediate slaughter. Mink can be brought in from anywhere. The trade is very much alive and will only suffer indirectly from this ban while people are still allowed to buy, sell and wear fur. I presume that the Government do not wish to ban that too; the Bill certainly does not say so. Therefore, to ban imports into the United Kingdom is pointless, as the United Kingdom makes up less than 1 per cent. of the entire European fur trade. I hope that the noble Baroness may consider this amendment to be worthy of incorporation. She will see that all the amendments that I have tabled are not destructive. They are not offensive or anything like that but are intended to help the noble Baroness to improve her rotten Bill.
I turn now to Amendment No. 6. This is a matter of interpretation. The Houses of Parliament in Westminster can legislate only for England and Wales and not for Scotland. What happens therefore in Scotland if fur farming is banned in England and Wales? Does that mean that fur farming in Scotland is all right until the Scottish Parliament does something about it? This amendment seeks to avoid confusion caused by the accidental criminalisation of overseas concerns where a director of an overseas company may have caused the company to commit an offence under subsection (1).
This amendment confirms that only the owners of animals in England and Wales can be prosecuted but not the employers of the owners who have knowledge of the illegal farms but who are not technically bound by English and Welsh law. That is a slightly technical amendment but I hope the noble Baroness will be able to respond to it. I have spoken to each of these five amendments. I beg to move.
Lord Luke: I am most grateful to my noble friend Lord Ferrers who has introduced this group of
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amendments, and who has mentioned that I shall be speaking mainly to Amendment No 2. However I should like briefly to say that I agree with all that he has said with regard to Amendments Nos. 1, 4, 5 and 6. The question of what happens in Scotland has been exercising my mind, as it did that of my noble friend. I imagine that someone may receive compensation in England; may move to Scotland and set up there, just in time to be caught by some new Bill going through the Scottish Parliament. He will then be paid double compensation. That does not sound very sensible but is not altogether impossible if someone moves at the appropriately fast speed.
Amendment No. 2 seeks to deal with a situation (save with rabbits) where the animal is kept both for its meat and fur. Therefore, it is obviously not primarily for its fur. Let us take a hypothetical situation where the market value of this animal's meat falls substantially so that the overall value of the animal is now dependent largely upon its fur. If that were to occur, a previously law-abiding farmer could then be breaking the law as set out in this Bill, since it could be stated that the animal was now being kept primarily for its fur. This exception does not of course apply if the animal is being kept solely for its fur.
Without my amendment, confusion may arise as to when or whether a person was or was not in breach of the law. If an animal was being farmed for both its meat and its fur, and kept in a manner appropriate to its status as livestock, bred for food production, then the change in the value of parts of the animal, in the hypothetical situation I have already mentioned, would mean in effect that the fur farm could be operating under exactly the same, and therefore highly regulated, welfare conditions as the food production business beforehand.
This scenario shows how serious a precedent this Bill could create for the livestock industry, since the complaints against the treatment of fur farm animals made by animal rights lobbyists can just as forcibly be applied to other creatures which are held in captivity to meet a human requirement, whether that requirement be a luxury or a necessity according to one's point of view.
The amendment raises a debate on the similarities between the farming of livestock for meat and farming livestock for fur, because it attempts to allow for the cross-over between the two industries which has not been fully appreciated in the Bill as it stands.
3.45 p.m.
Lord Monson: I wonder whether the noble Earl, or indeed any other Member of the Committee, could say whether the method of slaughtering farmed mink differs in any way from the method of slaughtering farmed rabbit or indeed farmed moles, should any such establishment exist. If there is no difference, and if the degree of distress at the time of slaughter is no different between those various species, it seems to me

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a particularly good argument for accepting Amendment No. 5, as well, no doubt, as all the other amendments in this group.
Lord Kimball: I am rather worried about Amendment No. 4 because I quite understand what my noble friend Lord Ferrers said about an animal being dead and about its skin, whether it is for shoes, handbags or something else. But what is the position with reptiles? Surely, the thing about a reptile is that it sheds its skin and carries on with the rest of its life unharmed. I should be grateful if we could have a little guidance on the position of reptiles as against that of the other animals which are dead because they have given up their skins.
Baroness Miller of Chilthorne Domer: I hesitate to venture into the technicalities of this, but I should have thought that a shed reptile skin was not much use for anything. I believe that the skin is used only after the reptile has been killed for its skin. But I rise mainly to speak to Amendment No. 5. We on the Liberal Democrat Benches believe that Amendment No. 5 has the potential to encourage a live trade in animals, so we do not feel this would be a good amendment to include. We feel that it would encourage the very trades that we are trying to see diminished. I have no particular comment on the other amendments, except to say that we do not believe that they forward the purpose of the Bill.
Lord Beaumont of Whitley: We are all grateful to the noble Earl, Lord Ferrers, for pointing out the similarities between this and some other kinds of farming where it overlaps between fur and meat. That raises the whole question of the farming of other animals. It is extremely good that our attention is drawn to it, and noble Lords, particularly members of the noble Earl's party, will no doubt take that argument away and think about what further legislation is needed.
In the meantime, there are quite clear reports and agreement that mink and foxes are kept in bad conditions, and that the fur farming of them has led to very considerable cruelty over a period of time. Therefore, no problem of how the practice spills over into other areas should prevent us from pursuing this Bill with, if necessary, one or two minor amendments.
Lord Hardy of Wath: I support this Bill. I want to touch upon the cruelty argument which the noble Lord has just mentioned. As regards the effect of fur farming within the British environment, great disadvantages have accrued. One thinks, for example, of the enormous damage done in the Norfolk Broads as a result of the release of coypu. One looks now at the problem presented by mink throughout many parts of the United Kingdom. My noble friend may recall that before the Summer Recess I said that I supported the Bill. However, I had one principal anxiety; that is, as the industry is wound down, further mink might be released. I asked the Minister to ensure that the inspectors from the appropriate department maintained their vigilance to ensure that no further mink escaped because of the damage they do.
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I noticed a few weeks ago that people from the animal rights organisation sought to attack a fur farm to the west of Doncaster. They were taken away by the police and some evil people burnt the car that they left behind. They are in the process of suing South Yorkshire Police for that particular incident. I do not know what will happen and that is nothing to do with the case. But it worries me that animal liberation people have themselves released mink. The mink that they released probably suffered a crueller death than the mink that were to be killed on the fur farm, but some were not killed and entered British wildlife.
We are seeing a critical situation arise with regard to the water vole. The population of water voles has dropped dramatically and they are now the subject of a biodiversity recovery programme. One wishes it well. But the remaining water vole will not benefit if more mink are released into the wild. Therefore, I trust that the Bill will go through, and that steps will be taken to ensure that the mink problem is not exacerbated.
One can go on. Furs become fashionable. The coypu fur was extremely fashionable 40 or 50 years ago, and a tremendous penalty was paid. Mink, I understand, are not quite so fashionable today. But what happens if another species is regarded by the fashion trade as the "in" fabric for their future sales? We will then find yet another non-indigenous species coming into Britain and inevitably escaping. Members of the Committee on both sides strongly supported the provisions of the 1981 Act to prevent alien species being brought into Britain; we have had too many. One can go through a wide variety of both animals and plants which present real problems in the United Kingdom. This Bill can therefore be seen as having a conservation value as well.
I hope that Members of the Committee will not press their amendments because the cause in terms of the environment and conservation is also strengthened by this measure.
Lord Monson: The noble Lord, Lord Hardy of Wath, is a great expert in these matters. Can he tell us whether most of the released mink were accidentally released by fur farmers, or deliberately released by so-called animal rights saboteurs?
Lord Hardy of Wath: I suspect that the majority have been released by saboteurs. I hold no brief for saboteurs; they have done a great deal of harm. However, I do not suppose that every mink farm in this country has operated with such a degree of security that no mink have escaped. They are fairly intelligent animals, even though their lifespan is relatively short, apart from the breeding females and they may not have many weeks of life before them. It is possible that some of them are sufficiently ingenuous, where proper care has not been exercised, to escape by themselves.
But it does not matter whether they were released or escaped. A great deal of damage has been done. It needs to be minimised. The problem needs to be resolved, and we should certainly not get ourselves into a situation in this country where releases from another species designed for the same purpose cause havoc in many parts of the country.

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I mentioned the farm close to Doncaster. If any mink were released there, I would be very anxious because only two or three miles away is an important nature reserve of the Yorkshire Wildlife Trust, Denaby Ings. Three miles to the west of that is a splendid nature reserve, heavily subsidised by the taxpayer, developed as a result of the improvement of the Dearne Valley. A mile and a half from that is a lake at the back of my house on which wildfowl have been encouraged to breed, and the population is quite high. I would hate to think I had to spend time walking around that lake trying to ensure that mink do not exercise depredations on the wildlife I like to watch.
In my view, it is essential that great care is exercised when closing fur farms. I am sorry to have spoken at length but the noble Lord will realise that the environmental effect is not dependent on the nature of the release of the mink.
Lord Kimball: Perhaps I may suggest that when we consider the compensation clause, we must ensure that payment is made for the dead meat in order to be absolutely certain that every mink for which we are paying is dead.
Lord Hardy of Wath: I hope that my noble friend will consider that proposal very seriously indeed.
4 p.m.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Baroness Hayman): We have had an interesting short debate which has raised many of the fundamental issues that were raised at Second Reading. I do not think of the noble Earl, Lord Ferrers, as a ghost who has come to haunt me. He is very much alive and kicking, I would say, in terms of the contribution he has made today, that there are certainly worse ghosts in one's past that one may have to confront.
We missed him at Second Reading and he was right to raise with us today some of the basic issues that we covered in that debate. I must say I thought we dealt with many of the possibilities arising from this Bill, but I underestimated his imagination. I was surprised when I saw his amendment dealing with the commercial keeping of moles, and it was not until he expatiated on that in his contribution that I considered the possibility of being an accessory before or after the fact in trying to deal with the molehills in my own garden. I hope I can offer him some reassurance on that issue in a moment.
The noble Lord, Lord Beaumont of Whitley, took us back to some of the fundamental issues here; namely, the question of the breeding of animals for slaughter as a matter of principle, and the basis on which we in our society consider that breeding and slaughter to be justifiable.
At the heart of this Bill is the Government's answer to the challenge to which it is appropriate that any of us should rise when asking for a justification of killing animal life; that is, whether the purpose justifies the slaughter. At the heart of this Bill is the Government's
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belief that fur farming is quite distinct from food production, and that while food production provides the justifiable purpose for the breeding of animals for slaughter, the public benefit to justify the breeding of animals for fur does not exist. That is why this Bill sets out to outlaw, in very strictly defined terms, that activity.
I deal now with the individual amendments. I am afraid I am not able to accept any of the amendments that we have discussed; but I hope I can offer some reassurance on the reasoning behind the arguments in favour of the amendments that have been put forward. I shall deal with them slightly out of order but in what may be seen as a logical sequence.
Amendment No. 6 deals with the scope of the Bill. I assure the noble Earl, Lord Ferrers, that there is a general presumption in UK law that UK Acts of Parliament do not apply outside the United Kingdom. Equally, it is made clear in Clause 7(4) that the Bill applies to England and to Wales. Therefore, it is clear on the face of the Bill that none of its provisions can apply outside England and Wales. In that sense, therefore, I hope that there is some reassurance.
As regards the possibility of the transfer of activities to Scotland, the Bill does not apply to Scotland, as is clear from Clause 7(4). That is one of the consequences of the division of responsibilities between the UK Parliament and the Scottish Parliament following devolution. I can, however, tell the Committee that the Scottish Executive have said that they intend to put a Bill before the Scottish Parliament to ban fur farming. Unless and until that comes into force a person will be free to keep animals for fur in Scotland and this Parliament cannot legislate for North of the Border in that respect.
I turn to Amendment No. 1. As I said earlier, the noble Earl, Lord Ferrers, suggests in this amendment that rabbits and moles should be exempted from the purposes of the Bill. As regards moles, the reassurance is that the skins used are traditionally from moles trapped in the wild, not from farmed moles. It is, of course, the farming of animals with which the Bill is concerned. I hope that that gives him reassurance. I have looked for examples of commercial mole production but without success. If he has found some, we may need to look at that matter again but, as he outlined, the use of the skins appears to be very much a by-product from wild moles and therefore not within the scope of the Bill.
Rabbits are farmed for their meat with fur as a by-product. It is not the purpose of this Bill to prohibit that activity. When we turn to Amendment No. 2, we come to the problem outlined by the noble Earl and by the noble Lord, Lord Luke, about the possibility of "primary purpose" being misinterpreted or changing in the light of fluctuations in market value—the relative value of the meat production and the fur production.
The Government do not have to introduce an arbitrary test to determine when someone is keeping an animal primarily for the sake of its fur. There is some guidance in the explanatory notes, to which I can

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direct the Committee. The primary meaning of "value" in this context is commercial value but the term is sufficiently wide to include the value of the fur to an individual who has no intention of selling it. It would be for the courts to decide on the meaning of "primary" in particular cases. If a prosecution were brought in a case which clearly did not merit it—for example, where fluctuations in the value of rabbit fur changed the primary purpose—the courts would no doubt make it clear in sentencing or even acquitting when a prosecution was not appropriate. Our purpose is not in any way to outlaw the keeping of rabbits when this is done both for meat and fur as a by-product. The courts will be quite capable of interpreting "primary purpose" in that respect.
Amendment No. 4 is not necessary in that fur does not extend to leather. The Bill covers only fur and it would not extend to leather, the Bill only covers fur and it would not extend either to reptile skins. I can do no better than to read to the Committee the legal advice I have on this matter for people to reflect upon, which is that fur may indeed be a skin, but a skin is not a fur unless it has fine hair on it. In that clear and simple definition, we see the distinction that is to be made.
Earl Ferrers: If that is so, and I quite accept it, what is so objectionable about having a skin in the form of a shoe which does not apply to having a skin in the form of a fur? They are both skins. It is merely the amount of fur or whiskers that come out of the skin which determines whether or not it is a fur.
Baroness Hayman: The noble Earl is focusing on the end product, which is not what we are trying to outlaw, rather than focusing on what we are trying to outlaw—the breeding and slaughter of animals for the sole purpose of their fur. If one thinks about leather production, one is talking about a by-product for a dual purpose; one is not talking about a sole or primary purpose. The Bill does not outlaw the wearing of fur or the wearing of leather, or the selling of fur or the selling of leather. We are talking about the activity of farming; that is, breeding for slaughter animals for the primary purpose of fur production.
Lord Monson: Perhaps I may put a question to the noble Baroness. She said that the Government object to the breeding of mink for the sole purpose of their fur, and I understand her position in relation to that. But I presume that the meat of slaughtered mink is not currently suitable for use as pet food. Otherwise, it would surely already have been used in that way. Let us suppose that chemists devise a method of treating mink meat so that it became suitable as pet food and was subsequently sold as such. Would that not undermine the Government's support for the Bill, because then there would be a dual purpose for the slaughtered mink?
Baroness Hayman: The noble Lord may wish to reflect on the European legislation in relation to mammalian meat and bonemeal and its incorporation in animal food and the fact that mink are subject to a
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variety of transmissible spongiform encephalopathies. In view of that, I feel that the likelihood of anyone desiring to bring that back into the pet food chain in any way is so remote as to be one that we need not envisage in this particular area.
I turn to Amendment No. 5. The Bill provides for the ending of the keeping of mink solely or primarily for slaughter for their fur. It does not matter for how long mink are kept, whether it is a day, a year or a decade, the point is the same. We do not want to see animals imported solely for slaughter for their fur on the same day. We regard this as unacceptable in terms of public morality and, therefore, we could not accept the amendment as it would permit such a trade to continue.
The noble Baroness, Lady Miller, made the point that we should be supporting an import trade in an activity that we are setting out to legislate against within England and Wales. On that basis, I hope the Committee will agree that the primary issues behind these amendments have been dealt with within the Bill and I hope that they will not be pursued.
Lord Kimball: Before the noble Baroness sits down, will she clear up the point about a mink that has escaped and is then taken, quite correctly, in a cage trap. What is the position in regard to that? There is no reason why that mink cannot be sold and so on. It is a wild animal and has been caught in a trap. Why can it not be sold?
Baroness Hayman: I shall try and think on my feet while others think sitting down. I suggest to the noble Lord that what we are talking about here is not sale; we are talking about breeding and slaughter for commercial purpose. In that sense, a wild mink caught in the trap would not be covered by this Bill, and therefore the sale of its fur would not be illegal.
Lord Davies of Coity: Perhaps I can ask a question arising out of that, because there seems to be a problem inasmuch as it perhaps opens the door for some abuse. As mink can be released into the wild and then trapped that undermines the purpose of the Bill, if the Minister is correct in that regard.
Baroness Hayman: Other legislation covers that issue, and my noble friend Lord Hardy referred to it at Second Reading and again today. There are very tight strictures against the release of mink into the wild, and so an offence would be committed by anyone who was trying to circumvent the law in that particular way.
The Earl of Carnarvon: Perhaps I may ask the Minister a question. If a farmer was keeping merino sheep for wool, or a rabbit farmer was keeping chinchilla for fur, you are saying that those two areas would not be involved. Is that correct?
Baroness Hayman: I am saying that the sole purpose of the keeping and slaughter for the production of fur—and we have had some debate about that—is an offence. If the fur is shorn or clipped—one can think

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of alpacas, for example—no offence is committed. It is the slaughter solely or primarily for the purpose of obtaining the fur which becomes illegal.
The Earl of Carnarvon: That probably covers the merino position, but how would it cover the chinchilla? I am asking in order to save someone further down the line from asking all these questions.
Baroness Hayman: All animals which have fur which are being bred for this purpose solely or primarily would be covered by the Bill.
The Earl of Carnarvon: Will that include chinchilla?
Baroness Hayman: Yes it will. It is quite clear that it includes rabbits if they are not kept primarily for the purpose of meat. The issue is whether there is a joint purpose of food production and fur production. That is one test. The other test is whether the fur can be extracted without slaughter, which is the alpaca question.
Earl Ferrers: I am grateful to the noble Baroness for those answers. I understand that she was struggling a little for the appropriate riposte. The majority of the amendments that have been put down are really for clarification, and I would have thought that they could do nothing but help the Bill. I was surprised when the noble Baroness, Lady Miller of Chilthorne Domer, said that she did not like Amendment No. 5 because it encourages trade. I thought the Liberal Democrat Party liked to encourage trade, but apparently not over this.
I was also interested by the intervention of the noble Lord, Lord Hardy of Wath. I know how keen he is on the wildlife and so forth, particularly that near to him. He said that mink would do terrible damage if it were let out. Of course, it is perfectly true. One mink farmer had 9,000 mink and an animal rights group let out 7,500. It is not the farmers who are doing the harm; it is these people who are deeply offensive—and more than deeply offensive. They throw things at them; they swear at them; they even follow their children to school. It is the farmers whom the noble Baroness should be protecting rather encouraging through the provisions of this Bill. The noble Lord, Lord Hardy of Wath, said that he was in favour of the mink being destroyed, because if they escaped they would eat up all the wildlife. Mink have a right to live too, and should not necessarily be destroyed.
What about endangered species like cormorants? One cannot shoot them, and they fish out of the rivers. Nobody can stop that because of European Union legislation.
4.15 p.m.
Lord Hardy of Wath: The point I should have stressed is that the mink may well have a right to live and perhaps thrive in their natural environment which
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is not within the United Kingdom. It was and is an alien species, and it is deeply regrettable that it was ever allowed to enter the United Kingdom.
Earl Ferrers: That is not much of an argument. I do not see why people cannot bring things from outside. If the noble Lord, Lord Hardy of Wath, were to look at his garden and other gardens, he would find endless cherry trees that were imported from Japan. They are not indigenous to this country, but they add to the glory of it. It is not much of an argument to say that, because an animal started off in another country, it has no right here particularly when it is being kept securely.
The noble Baroness, Lady Hayman, said that it was not necessary to include moles because we do not farm moles. However, the mole catcher farms moles; he makes his living out of the pelts, and they are not caged.
Baroness Hayman: I wondered whether the noble Earl breeds moles.
Earl Ferrers: I do not breed them; they breed themselves! The argument that it is all right to breed rabbits if you keep them for meat and fur, but not if you keep them for fur only is absurd. When I was a child, I used to keep rabbits; I remember having chinchillas and silver foxes. One would now be described now as a criminal if one kept those animals only for their fur.
It is an absurd argument that it is all right to keep an animal if you kill it for its meat, but not if you kill it for its fur. I know some people do not like using fur, but others do. It is not the Government's duty to pontificate and moralise as to who is right or wrong. For the noble Baroness, Lady Hayman, to say that it is right to kill for an animal's meat but not for its fur is a bad argument.
I had hoped that the noble Baroness, Lady Hayman, would have been amenable and say my amendments were helpful.
Lord Davies of Coiyy: Before the noble Earl sits down, I am somewhat intrigued that he failed to make any distinction as regards the breeding of animals for the purpose of food. We eat; we survive; and we live. That is to be distinguished from the breeding of animals simply for decoration. That is the essence of the argument. We breed animals to eat, and that is permissible. However, it is not permissible to breed animals simply in order to take their fur for decoration.
Earl Ferrers: That is the argument which is used; I do not agree with it. One keeps animals for food, but uses their skins for other purposes. That apparently is all right. If you did not eat those animals, doubtless you would still keep them for their skins, unless the noble Lord, Lord Davies of Coity, wants to walk around in clogs. While he may not like the idea of people wearing skins, it does not mean to say that other people do not. It is not the Government's job to moralise and tell us what to do; it may be the job of Government to ensure

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that the animals are kept in good condition and looked after well. Indeed, that is the case in this country. We expect that and, indeed, the animals are looked after very well. It is another thing, however, for a government to stipulate that someone should, for example, wear mink or a black tie and pass legislation to achieve that which is quite wrong.
Baroness Hayman: I hope the noble Earl will allow me briefly to interrupt. I shall try not to be tempted into the wider argument to which he alluded. He said that it is absurd to argue that there is a difference in purpose between keeping animals for food and keeping them for fur. He would probably not consider it to be an absurd argument to say that there is a difference when the animals are kept and bred in order to satisfy the amusement of those who take pleasure in cruelty. For example, bear-baiting might be a simple example of that. We have to draw lines in society about the purposes and ways in which we treat animals.
I accept that the noble Earl does not agree with where this particular line has been drawn. I have to say that there are others who agree with it totally. Those of us who have been involved in this debate could be in no doubt about the strength of feeling that exists on this issue. He is not right, therefore, to say that it is absurd for the Government to take a position on an issue which is of grave public concern, although I accept absolutely his right to take a different view on that.
I rose to speak mainly to ask him whether he will be kind enough to correct an earlier point that he made, on which he may have given the wrong impression. I hope that nothing I have said and nothing that this Bill puts forward encourages illegal activity by those either who intimidate people going about their legal business or who, against the law, release mink into the wild. There is no encouragement for that either from the Government or from this Bill. I should like firmly to put on the record the Government's opposition to any such illegal activity.
Earl Ferrers: The noble Baroness was quite right to say that and naturally I accept it entirely. I meant to imply that people—animal rights activists—who have been doing these terrible acts have taken succour from the fact that the Government have introduced this Bill to prohibit an activity which they consider to be morally wrong. That has "encouraged" them in their crusade. I do not mean that the Government have deliberately set out to encourage them.
Baroness Hayman: I say only to the noble Earl that even that statement is contentious. The level of animal activists' activity against fur farms has diminished rather than increased since the prospect of Government action.
Earl Ferrers: In view of everything the noble Baroness has said about these amendments, I beg leave to withdraw them. I cannot guarantee that I shall not return to them but I certainly appreciate her comments.
Amendment, by leave, withdrawn.
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[Amendment No. 2 not moved.]
Earl Ferrers Earl Ferrers moved Amendment No. 3:
Page 1, leave out line 17 and insert ("£l,000").
The noble Earl said: Amendment No. 3 is designed to put some sense into the system of fines. If in the future you are found to be keeping mink, you may be fined £20,000. That seems a monumental sum. I have suggested that the figure should be £1,000. It is rare to have fines above £5,000 without the possibility of a custodial sentence. It is surely unlikely that anyone would consider that to be appropriate for the offence of keeping a few mink. Compared with, for example, grievous bodily harm, the offence of keeping mink is fairly paltry. In any event, a forfeiture order may be imposed so the person is bound to lose his mink. Moreover, it is possible that prosecutions could take place in respect of animals farmed primarily for their fur. That is what we have just been talking about and rabbit farmers could possibly become caught up in it. I think that the figure of £20,000 is unrealistic and bizarre and suggest this might be a more appropriate figure. I beg to move.
Baroness Hayman: This is a matter of a simple disagreement between the noble Earl and the Government—and that is not a unique situation —as to the appropriate level of the penalty. I would remind him that the maximum fine—and it is a maximum fine—of £20,000 would be for the offence of keeping any number of mink and not per animal, if one can put it that way. Our belief is that a maximum fine of£1,000 will not act as a sufficient deterrent to the keeping of mink once the ban is in force. As I said earlier this is a maximum fine but we ought to legislate in terms of allowing that penalty to fulfil its deterrent purpose and on that basis the Government believe that £20,000 is an appropriate figure.
Lord Monson: Can the noble Baroness confirm that there would be no right to jury trial for this offence, and that the maximum fine, if imposed, would be imposed in the magistrates' court? Is that correct?
Baroness Hayman: Given the current flux in debate on these issues, I would wish to be absolutely certain of my territory when answering the noble Lord, Lord Monson, and I can confirm that he is correct. There would not be the option of a jury trial; this would be a magistrates' court offence.
Lord Hylton: The noble Baroness said that the £20,000 figure is a maximum but I do not think she can in any way justify that level, particularly when it can be combined with forfeiture of goods.
Lord Hardy of Wath: I take the point made by my noble friend that this is a maximum but one would hope that in many cases the court would shrink from applying the maximum fine. On the other hand, I have from time to time been horrified by fines imposed by the court which bore no relationship either to the maximum penalty available to the court or to the scale of the offence.

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The noble Lord, Lord Kimball, may recall that a long time ago there was a very substantial trade in falcons. Virtually all young falcons in the nest in the United Kingdom were under threat because they could be sold for £600 a bird and the maximum penalty which then applied was £2. A Bill to amend the protection of birds legislation was introduced and one of its provisions was very substantially to increase the fine. Both Houses of Parliament saw that Bill reach the statute book within about a fortnight. I watched with horror a few months later when the first prosecution came up in court: although both Houses had seen the wisdom of increasing the fine massively, the court applied a fine of £5. That was more than the previous maximum but it bore no relationship to the maximum laid down by law.
I have again been horrified in recent months by the fines imposed for polluting water courses. A very substantial fine was imposed but it covered only about 10 per cent of the public cost of carrying out the investigation to establish that an offence had been committed. The courts are very flexible, sometimes too flexible, but it is appropriate that from time to time a substantial fine can be awarded where circumstances justify it.
Baroness Hayman: My noble friend makes the Government's case eloquently here. We need flexibility and range to deal with the variety of circumstances that may occur. It might well be that an extremely small fine was appropriate for an extremely small breach. However, given the turnover possible for some of the larger farms, it is our responsibility as legislators to make sure that we put into the armoury of deterrent penalties an amount substantial enough to ensure that the fines do the job for which they were introduced. It is on that basis that the £20,000 was reached as a maximum.
Earl Ferrers: I knew that, if the noble Baroness did not find acceptable my helpful amendments earlier, she would not find this one acceptable and I understand the reasons why. It just seems to me to be a gargantuan figure. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.30 p.m.
[Amendments Nos. 4 to 6 not moved.]
On Question, whether Clause 1 shall stand part of the Bill?
Earl Ferrers: Clause 1 is the meat of the Bill and its purpose is to criminalise what is a perfectly legal form of farming. My noble friend Lord Kimball said it is equivalent to a Bill of Attainder, where someone's right to do something is taken away without there ever having been a law passed or that person ever having been convicted of wrongdoing. I find it unbelievable that the Government should set out to harry, to penalise and to destroy 13 people and their businesses. The Government ought to be protecting minorities.
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But they do not want to do that. It does not matter whether it is fox-hunting, hereditary Peers or mink farmers; if they do not like them, get rid of them!
Then the noble Baroness said that the public benefit does not justify mink farming. The Government are not there to pontificate on people's morals. The real reason is that, according to Elliot Morley who was one time Parliamentary Secretary to the Ministry of Agriculture and has now passed on—or moved on—
Baroness Hayman: No, he is still there.
Earl Ferrers: He is still there? My goodness! Anyhow he said that the principal reason for this is public morality. Who is Mr Morley, Parliamentary Secretary to the Ministry of Agriculture—and I apologise for having misdirected myself—to dictate what our morals should be? Why should the Government consider that this particular facet of our lives—mink farming—should be considered immoral but it is perfectly moral for them to lower the age of homosexual consent and to promote homosexuality? Are all farmers in the European Union—mink farmers and fur farmers—immoral? What about the skin farmers in Canada? Are they all immoral too?
The principal reason for the introduction of this Bill, as the noble Baroness, Lady Mallalieu, pointed out at Second Reading, is that when Mr Morley was in Opposition, he received assistance via the International Fund for Animal Welfare, which is not a charity, which gave the Government £1 million. Presumably this is the payback. I understand that the Government will receive another £1 million from that organisation. Is that for services rendered or for more services about to be received and other facets of policy to be purchased? The whole principle behind this clause is, if I might say so, total hypocrisy.
I shall say this in the most charming way that I can. The noble Baroness knows that all the Members of her party in the House of Commons hate the House of Lords, but they all queue up to come here. And when they come here, what is the first thing they do? They put on robes covered with ermine. Some people say it is not ermine now; it is rabbit. But it is not a myxomatosis rabbit; it is a farmed rabbit. So what is the difference? Why are they prepared to say all that is wrong and yet they are quite happy themselves to wear it? Will it make any difference to the mink? The answer to that is no, because the United Kingdom only produces 1 per cent of the European fur trade. Of course, the additional reason for saying that this Bill is brought forward on moral grounds is because, had the Government brought it forward on animal welfare grounds, they would have contravened European Union legislation. They did not want to do that so they have brought it forward on moral grounds. I think that it is wrong and totally unacceptable for the Government to pontificate on morals—what should be considered to be morally correct and what should be considered as morally wrong.
Lord Luke: I support my noble friend in everything he has just said. I should like to help the Minister by making one small quotation.
"Ultimately, what is the moral difference between rearing an animal to eat it or to wear it? Mr Morley says that there is one, but to the animal there is none".—[Official Report, 19/7/00; col. 1138.]
Who said that? It was the noble Baroness, Lady Mallalieu, in her Second Reading speech.
Lord Hylton: I regret that I was unable to be present for the Second Reading of this Bill. In the past the noble Earl, Lord Ferrers, and I have had many tussles when he was occupying various ministerial offices. But today I am extremely happy to support him in criticising the Bill, and in particular Clause 1. It seems to me to be political correctness gone completely mad.
There has been a great deal of argument about whether or not it was cruel to trap wild animals for their furs in Northern Canada, or wherever else that may happen. Now, by extension, we get a Bill that prohibits fur farming in this country.
I should have thought the criteria should have been whether or not there is good husbandry of the animal, as in the case of any other animals that are farmed. If the husbandry is good, there will be no cruelty. If the husbandry is bad, it is very likely that there will be cruelty. I wish the Government had not chosen to overload the legislative process with this rather unnecessary Bill.
Lord Beaumont of Whitley: I want to comment on what has been said by the noble Earl, Lord Ferrers. He has challenged the Government's right to act on morality as such. Whenever that is done in respect of a current problem, there is always an argument, and there is an argument on which there are two sides. I think the general principle is quite clear: where there are abuses in the structure of society and they are widely recognised as such, the Government have a right to act.
The Government had a right to act in banning bear baiting. They had a right to act in the abolition of the slave trade. That put out of business many extremely inoffensive people who had been in that trade for a long time and it took away their money. The Government are right to legislate about prostitution. In this case the Government are not quite clear about what they want to do. And the Government are absolutely right, of course, to tackle the problem of hereditary Peers, which has been a crying scandal ever since my two grandfathers fought against it in the 1906 Parliament, and Mr Campbell-Bannerman before that.
There is no question that the Government have the right to act on questions of morality in the public sphere where there is a widespread knowledge of abuse. I believe that the argument of the noble Earl, Lord Ferrers, does not stand up.
Lord Monson: The noble Lord has failed to address the points raised by the noble Lord, Lord Luke, on what the noble Baroness, Lady Mallalieu said at
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Second Reading. The animal being slaughtered is totally indifferent as to whether it is being slaughtered for meat or for fur. The degree of pain, if there is any pain felt, is absolutely no different at all.
An additional point which was not made is that it is not necessary to eat meat for human survival, as I am sure the noble Lord will agree. It is much more agreeable to eat meat than to be a vegetarian but people can perfectly well survive without it, Therefore, we are not talking about necessities; we are talking, in a sense, about luxuries in both cases.
The Earl of Shrewsbury: I would like to support my noble friend Lord Ferrers because I find this a pretty obnoxious Bill. I find it very difficult indeed to understand how fur farming can be judged by the Government to be morally unacceptable when they are quite happy to allow Halal killing. Halal killing is done for just a small number of cattle and sheep and it is the most appalling way of killing animals. That to my mind is totally morally unacceptable. I wonder whether the Government will move to ban that next. I hope that they will.
Lord Hardy of Wath: Perhaps I may ask the noble Earl, Lord Ferrers, a question. He has put a very powerful argument, one which is natural from that side of the House, but do we take it that a Conservative government, should they be elected, will introduce a measure to restore fur farming to the United Kingdom, which clearly they would seem to find acceptable?
Earl Ferrers: Perhaps I may answer that; I do not have the slightest idea. It is not my business to decide the next government's policy.
Lord Kimball: Will the Minister answer a further question in winding up, one which arises from the speech at Second Reading by the noble Baroness, Lady Mallalieu? We all know it is absolutely wrong to take cash for Questions. Why is it wrong now to have money for policies? There is no difference, surely? If it is wrong to take cash for Questions, why is it right to take money for policies?
Baroness Miller of Chilthorne Domer: I find the suggestion that governments should not make moral decisions on behalf of the people they govern quite incredible. After all, that is what political parties' manifestos are about. They set out the kinds of moral stance which they intend to take on particular issues and the public decide whether or not they agree with those issues. Political parties at the moment are tussling with the moral issue as to whether cannabis ought to be legalised, and I do not believe anybody has any final wisdom on that issue. However, each party—and certainly the Conservative Party when it was in power—made moral judgments on all kinds of things, from housing provision and who should be eligible for housing through to whether cigarettes could be sold to minors. I do not think the argument that governments should not make moral decisions carries any weight at all.
Baroness Hayman: I am grateful to the noble Baroness, and in a light-hearted moment, which are few and far between, I was tempted to suggest to the noble Earl, Lord Ferrers, that I would stop talking about public morality in this respect if the Opposition would stop talking about it in terms of Section 28, the age of gay consent and many other issues in respect of which we seem to have spent an awful lot of time because we thought it was appropriate for politicians, and indeed governments, to join in the debate.
We are dealing here with an issue which is not susceptible of an absolute definition. There are judgments to be made. I feel I have shown a little more respect for the different views taken by Opposition Members than they have taken for the legitimate view of the Government, endorsed by another place. Although the noble Lord, Lord Monson, said this was a deeply politically controversial Bill it did not elicit any voting in another place, which is perhaps one of the reasons the House decided that it was appropriate to take the Committee stage here.
However, we shall not solve deep-rooted differences of opinion in the Moses Room this afternoon, although I feel I must say to the noble Lord, Lord Kimball, that he is wrong to suggest that money has been taken for policies in the way it was proved that cash was taken for Questions.
I say to anyone from the Opposition who tries to be helpful to me to stop; I may do better without helpful comments.
I say to the noble Earl, Lord Ferrers, what I said to my honourable friend at Second Reading; that is, that he can be as charmingly rude to me any time he likes. As regards my honourable friend in another place, it is inappropriate to have any suggestion of hypocrisy on his stand on this issue. Over many years he has had a long-standing commitment to animal welfare and animal rights issues. Members of the Committee may not think he is correct in his judgments, but to suggest that he is influenced in them by improper means or by inappropriate donations, should not be on the record, and is something I should like to put firmly to one side.
Clause 1 agreed to.
4.45 p.m.
Clause 2 [Forfeiture orders]:
Earl Ferrers Earl Ferrers moved Amendment No. 7:
Page 1, line 22, leave out subsection (2).
The noble Earl said: We now come to calmer waters. I beg to move Amendment No. 7 and speak to Amendments Nos. 8 to 11.
Amendment No. 7 allows for the forfeiture of animals which are kept by a person who has not been prosecuted or convicted of keeping animals under Clause 1(1); for example, a tenant whose landlord may have been convicted of knowing there was mink farming taking place on his land. It also applies when someone who has not kept the animals is convicted; for example, the landlord.
The forfeiture powers should be confined to the person who kept the animals. In other words, the tenant should be convicted under Clause 1 before his animals are forfeited. If only his landlord is convicted, the forfeiture should not take place. That seems to be wholly reasonable, and I hope that the noble Baroness, Lady Hayman, will think so also.
Amendment No. 8 relates to the words,
"so as to deprive any person of his rights in those animals".
That is pungent stuff. Should one deprive a person of his rights? The effect would be just the same without them because the animals would have gone anyway.
Amendment No. 9 relates to Clause 3 and leaves out paragraph (c). Where a court makes a forfeiture order, the person may be compelled to give up his animals and also pay for them to be destroyed, or pay for them to be kept before they are destroyed by somebody else. That again is hefty stuff. First, the person is fined £20,000; secondly, his animals are destroyed, or he pays others to keep them before they are destroyed; and, thirdly, he pays for them to be destroyed. It is hard on a person who is already going to lose his animals, and is unnecessary and heavy-handed.
Amendment No. 10 inserts another subsection. The amendment ensures that the animals cannot be destroyed under a forfeiture order before an appeal can be made or dealt with. That seems obvious. If a person has a forfeiture order made against him, he ought to be allowed to appeal before the order is carried out. That is based on Section 4(3) of the Dangerous Dogs Act 1991 which deals with orders for the destruction of dogs.
Amendment No. 11 prevents the release of forfeited animals into the wild. Much has already been said about animal rights activists who, while claiming sympathy for the mink, then let them out of their cages, ostensibly doing them a service. The result is that some of them have died, not being used to the wild conditions, and others have killed birds, fish and other sorts of wildlife. As I said earlier, one mink farmer has had 7,500 of his 9,000 mink let out into the open by these animal rights activists. Some farmers have been made ill by all of this and I believe that this would be a reasonable amendment to be included.
As regards Amendment No. 11, it is currently an offence under the Wildlife and Countryside Act 1981 and the Destructive Imported Animals Act 1932 to release mink or to allow them to escape into the wild. It is still in the interests both of the animal rights activists and the mink to have this amendment in the Bill so that the prohibition is prominent and clear. I beg to move.
Lord Hylton: I have already protested against the excessive level of the maximum possible fine. Therefore, I should like to support the noble Earl, Lord Ferrers, in what he has said about the possible accumulation of penalties against an offending person.

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While I am on my feet, perhaps I may say also that I very much support his Amendment No. 11 which deals with the release of animals into the wild.
Baroness Hayman: I shall deal first with Amendment No. 11, as the noble Lord, Lord Hylton, referred to it. I hope I can reassure the Committee that it is not necessary to pass that amendment. It is already illegal under the Wildlife and Countryside Act 1981 to release mink into the wild and there is no way in which a court could, or would, sanction something that would be illegal. Therefore, I hope that, in the way of a belt and braces provision, that is unnecessary in a situation that I believe we all wish to avoid for the reasons that have been referred to already today.
I hope I can reassure the Committee that the provisions of the Bill in relation to forfeiture are not in fact heavy-handed but only those that are necessary to cover all the circumstances that may arise. Indeed, I suggest to the noble Earl, Lord Ferrers, that the need to convict a tenant before forfeiture would produce an unnecessarily cumbersome procedure.
Where a secondary offence under the Act has been committed, the court needs the power to impose a forfeiture order on the animals being kept. For example, a landlord may have permitted a person to commit an offence under Clause 1(1). In such circumstances where the offender is prosecuted under subsection (2), the court needs to have the power to make any animals kept subject to a forfeiture order.
On Amendment No. 8, Clause 3(1) ensures that, when a court makes a forfeiture order, it is fully effective regardless of who may have an interest in the animals. Perhaps it would be easier for the Committee if I were to give an example. Let us suppose that a farmer mortgaged his property and the lender had a charge on it and that that included the animals. The court would not thus be prevented from using its powers to supervise the keeping or disposal of the animals as appropriate. Deletion of this provision would give rise to uncertainties as to the effect of a forfeiture order in such circumstances where someone else has an interest in the property.
Amendment No. 9 would make it unclear as to who was responsible for the keeping of animals subject to forfeiture. The Government are not prepared to fund these costs and it is right that the court should have this power.
As regards Amendment No. 10, under subsection (3)(d), the court may order that the animals may not be destroyed or otherwise disposed of until any appeal is determined. It is best left to the court to consider what is appropriate in the circumstances of each case, as is achieved by the current drafting of the Bill. In our view, however, a court would be most unlikely to allow destruction to proceed pending an appeal. On that basis, I hope I have removed some of the concerns that lay behind these amendments and that the noble Earl will feel able to withdraw them.
Earl Ferrers: I am grateful to the noble Baroness for explaining the position. There is a danger with Amendment No. 7 that the animal keeper might suffer
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a penalty by losing the animals without necessarily being convicted of an offence. That could be unjust, particularly under provisions of the Human Rights Act. I would ask the noble Baroness to comment on that in a moment, if she would be kind enough to look at it. I am grateful to her for her other replies and explanations with regard to the amendments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 [Effect of forfeiture orders]:
[Amendments Nos. 8 to 11 not moved.]
Clause 3 agreed to.
Clause 4 [Powers of entry and enforcement]:
Earl Ferrers Earl Ferrers moved Amendment No. 12:
Page 2, line 32, leave out subsection (1) and insert—
("(1) If a justice of the peace is satisfied by information on oath that there are reasonable grounds for believing that an offence under section 1(1) has been or is being committed at any premises, he may issue a warrant authorising a person authorised in writing by the appropriate authority to enter the premises and inspect the premises and any animals or things found there.").
The noble Earl said: In moving Amendment No. 12, I shall speak also to Amendments Nos. 13 to 19. Amendment No. 12 seeks to secure that a warrant from the justice of the peace is necessary before entry can be made into premises. It is not merely a regulatory inspection. Entry is allowed under Section 4(1) only if the commission of an offence is suspected, when people are permitted to enter premises by the appropriate authority, which means presumably some kind of government authority. Entry should be effected only with a warrant from a justice oft he peace. The powers of entry under the Animals (Scientific Procedures) Act 1986 and the Dangerous Dogs Act 1991 both rely upon such warrants.
Amendment No. 13 is a standard provision in the rights of entry, being based on Section 19601) of the Town and Country Planning Act 1990. It could be particularly important in fur farming cases because the shutting of gates is a necessity. If it is known that premises have been entered into because of suspected fur farming, there is a risk that people will enter in order to release the animals or to cause damage, which would clearly be undesirable.
Amendment No. 14 seeks to remove the word "intentionally" and insert the word "wilfully". The noble Baroness might question the difference but it takes me back to the House of Lords Bill when I moved an amendment that it should be "an" hereditary Peer and not "a" hereditary peer! I was told that it was not right. Everyone thought that it was right apart from the parliamentary draftsman and the Government can apparently modernise everything in this country other than the parliamentary draftsman. Here, "wilfully" is used more often than "intentionally" in respect of obstruction to the rights of entry. That appears in the Section 2(2) of the Breeding of Dogs Act 1973 and Section 196C(2) of the Town and Country Planning Act 1990. So there is a very good provenance. I am sure that now the Government will come round to

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modernising the parliamentary draftsmen as well as everything else under their view and they may perhaps agree to that.
Then we come to Amendment No. 15, which leaves out the word "includes" and inserts the word "means". This is a technical amendment. In the Bill at present, "premises" includes any place. What else can it include other than the premises? Surely the word it should have is "means". In other words, the premises "means any place", as opposed to "includes any place", unless the Government have the idea of including something else other than the place.
We then come to Amendments Nos. 16, 17 and 18 where I have suggested that instead of "private dwelling" we should insert "dwellinghouse". I will ask the noble Baroness to take her mind back to the House of Lords Bill and "a" and "an". The parliamentary draftsmen were always keen to use that which went before, and these amendments replace "private dwelling" with the word which is more commonly used; in other words, "dwellinghouse". Those are the words parliamentary draftsmen use for powers of entry under the Town and Country Planning Act and many other Acts. In order to achieve conformity they should be used.
Amendment No. 19 provides for compensation if damage is caused while exercising the powers of entry and enforcement. That is a perfectly natural thing if the damage is done when enforcement is being undertaken. The amendment is based on compensation provisions for rights of entry under Section 196C(3) of the Town and Country Planning Act 1990.
Amendment No. 19 provides for compensation if damage is caused while exercising powers of entry and enforcement. This is a standard provision to which I have already referred. I beg to move.
5 p.m.
Lord Kimball: I do not quite agree with my noble friend Lord Ferrers on this particular point. As I understand it, MAFF has the right to go into a fur farm at any point and inspect it. After all, we have in front of us an application to MAFF to keep a mink farm. It can go in at any time and inspect that mink farm.
If an offence is being committed by somebody else, it is a different matter, and of course you have to go to the magistrates and obtain the necessary authorisation. As I understand it, a police constable would need an authorisation, whereas the man from the Ministry would not. He would be allowed to go in because of the licence issue that has already been done. But I agree with my noble friend Lord Ferrers that anyone else going in would want to be absolutely certain that he had something issued by the magistrates and would have to take great care not to do things such as leaving the gates open.
Lord Monson: Even if Amendment No. 12 is defective, as the noble Lord, Lord Kimball suggests, I
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can see no objection whatever to Amendments Nos. 13 and 19 in particular. They seem to be entirely justified and I hope the Committee will agree to them.
Baroness Hayman: In putting forward these amendments, the noble Earl, Lord Ferrers, reminded us of some of the detail of the debate on the House of Lords Act. I have to say some of that took on a dreamlike quality for me and, although I cannot recall all of the debates, the dream-like quality is somewhat enhanced by the fact that we are still enjoying his presence and that of many other hereditary Peers as I look around the room. I do remember however the debates on "a" and "an" hereditary Peer, and have to say that, in common with him, I have a slight tendency to pedantry. Thus, had it been a free vote, I might have supported the noble Earl in that particular respect, but did not feel it was a resigning issue.
I suspect that issues of taste, pedantry and semantics will perhaps govern my response to some of these amendments. I deal first with Amendment No. 12. We believe that the process suggested by this amendment is cumbersome and unnecessary. Subsections (3) and (4) already require a person entering premises to show evidence of a right to do so if challenged. Under Clause 4(1) the "appropriate authority", which in England would be the Ministry of Agriculture, Fisheries and Food, will appoint responsible individuals as officers, and I can assure the noble Lord, Lord Kimball, that we would prepare appropriate guidelines for them to follow. There are precedents for such investigations where there is a reasonable suspicion of a breach of the terms of the notice served. Under the Plant Health Act 1967 for the purposes of plant health control, or the Animal Health Act 1981, persons authorised by the Minister may enter premises to investigate suspected breaches; for example, having diseased animals and not reporting it. There is precedent therefore and a system which works in a satisfactory way; anything else would be unnecessarily cumbersome.
We believe that Amendment No. 13 is unnecessary. Under Clause 4(1) the Minister is likely to authorise officers of the Ministry to enter premises. Those people would be responsible individuals and would certainly not leave premises exposed to intruders following an inspection. I can assure the Committee that Ministers and the police are well aware of the attention given to fur farmers by certain animal activists and the need under the Mink Keeping Order 1997 for fur farms to be secure at all times against the escape of mink. I hope that will provide some reassurance to the Committee.
In dealing with Amendment No. 14 perhaps I may refer to the Shorter Oxford Dictionary in response to the noble Earl's preference for "wilfully" rather than "intentionally" in this context. I suggest it is a matter of taste. The main point is whether or not the obstruction or delay to which this clause refers is deliberate. That is covered by both words and the dictionary definition of "wilfully" is,
"purposely, on purpose, intentionally or deliberately".

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So although the noble Earl may prefer one, I hope he will accept that the other fulfils the purpose.
Equally, in dealing with Amendment No. 15, I have to say that the natural meaning of "premises" is a place with a structure on it. With a view to extending the natural meaning of the word "premises", the Bill provides that premises includes any place, to clarify the point that the special meaning of premises here is that it can include land which is not built on. If the Bill provided that premises means any place, it would not carry the same clarification that premises can include land which is not built on. I hesitate to pray in aid parliamentary counsel, but the noble Earl will understand that I take my advice from him on this issue.
I suspect equally on Amendments Nos. 16,17 and 18 the need to change "private dwelling" to "dwellinghouse" is a matter of taste and preference of the noble Earl but tot homines, quot sententiae, and I suspect that parliamentary counsel's sententiae in this area were for using "private dwelling".
Earl Ferrers: I thought we were speaking English and suddenly the noble Baroness dropped into Latin and I did not quite hear it.
Baroness Hayman: I was trying to enter into the spirit of the thing and hoping to reach the levels of debate to which the noble Earl makes us all aspire. I said tot homines—as many as there are men—quot sententiae—there are sentiments or feelings, and I was suggesting that we could, between us, find many substitutes for "dwellinghouse", "dwelling", "private dwelling" or "dwelling place". Perhaps the simplest way forward is to go with parliamentary counsel on this; there is no dubiety on it.
We believe that Amendment No. 19 is unnecessary. Under subsections (1) and (2), the Minister is likely to authorise officers of his department, and, as I said earlier, those officers are responsible individuals who are not likely to cause damage when inspecting premises. If an officer were to exceed the limits of his statutory powers, the court would have powers to award compensation according to the ordinary principles of law; for example, relating to negligence. As I said to the noble Lord, Lord Kimball, when dealing with Amendment No. 12, we would certainly be providing appropriate guidelines to those officers who are undertaking this work in order to ensure that damage and difficulties are not caused.
Earl Ferrers: I am very grateful to the noble Baroness for those explanations. The only purpose of Amendment No. 14 was to make for conformity. I was delighted that she explained the difference between "includes" and "means" with regard to Amendment No. 15, and saying that the word includes land makes a great deal of sense.
With regard to her deviation into Latin, she said that for as many men as there are, there would be as many views. That may well be true but I was just trying to go along with the view of the parliamentary draftsman which I thought was helpful. However, I
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quite see that she prefers to have a different view. I am grateful to the noble Baroness for her helpful replies to these amendments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 13 to 19 not moved.]
Clause 4 agreed to.
Clause 5 [Compensation for existing businesses]:
The Deputy Chairman (Lord Brougham and Vaux): I must advise the Committee that, if this amendment is agreed, I cannot call Amendments Nos. 20 to 23 inclusive because of pre-emption.
Lord Luke Lord Luke moved Amendment No. 19A:
Page 3, line 14, leave out subsections (1) to (3) and insert —

("(1) Where any person incurs losses as a result of ceasing, by reason of the enactment or coming into force of section 1, to carry on his business so far as it consists of activities prohibited by that section, he shall, subject to the provisions of this section be entitled to receive a payment (hereinafter referred to as "compensation") from the appropriate authority.

(2) The amount of compensation shall be equal to the losses he sustains as a result of ceasing, by reason of the enactment or coming into force of section 1, to carry on his business so far as it consists of activities prohibited by that section and in estimating such losses regard shall be had to the period for which such business may reasonably have been expected to be carried on but for that section.

(3) Compensation shall carry interest, at the rate for the time being prescribed under section 32 of the Land Compensation Act 1961, from the date of the enactment of section 1 in the case of losses incurred by reason of the enactment of that section and from the date of that section coming into force in the case of losses incurred by reason of that section coming into force until payment.").

The noble Lord said: In moving Amendment No. 19A, I shall speak also to Amendments Nos. 23A to 23D. I am sure that all Members will agree that this group of amendments is the nub of our work in the Committee this afternoon.
I am moving this amendment to ensure that people who are being stripped of their way of life under the Bill are, nevertheless, compensated fairly for their loss. I would first like to apologise that this amendment appeared rather late in the day. The reason for that was that we were waiting to hear the response to the government amendment from the National Farmers Union and, accordingly, we wished to take advice ourselves on the Government's amendment.
We appreciate that the Government have tabled their amendment to Clause 5 in recognition of some of the deficiencies in the original content of that clause and in response to concerns over the lack of an adequate compensation scheme. However, we believe that it does not go far enough and, therefore, we propose an alternative amendment, which we believe shows proper consideration for all the concerns of fur farmers.
Without a simple and available scheme on the face of the Bill, confusion and uncertainty are inevitable. Although a procedure for compensation is to be provided under Clause 5—for which we are, of course,

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extremely grateful—until that scheme becomes much clearer it is impossible to confirm that it is based on fair and sound principles.
My proposed amendment would remove that uncertainty by inserting a layer for compensation that precludes the necessity for having an obscure and rather vague scheme which is to be decided some time in the future by the Ministry of Agriculture, Fisheries and Food. The amendment uses a framework taken from an existing compensation scheme under the Land Compensation Act 1973, and goes no further than that. Since the Government accept that there should be a scheme, it makes perfect sense to use a framework already proven and accepted as fair and which has stood the test of time.
The amendment would introduce compensation that is equal to all losses, including income and prospective income losses sustained by a person as a result of the removal of his business. Such compensation would in effect act as a purchase price under a compulsory purchase type scenario where businesses, not land, were being acquired. The amendment would permit those persons who would be forced to relinquish their livelihoods under this Bill to have confirmation that a fixed scheme was already in place prior to the enactment of the Bill. They will not be left in any doubt as to what is to become of them, nor as to how the Minister proposes to treat them in terms of compensation; that is, in a fair and honest manner. After all, it is only right that they should be aware of the method employed to calculate the loss of their prospective earnings and capital investments.
This amendment will help maintain a welcome transparency because it will ensure that both the farmers and the public are made aware of the amount of taxpayers' money required to put the farmers out of business, instead of leaving the direction and important details of a future scheme to the Minister.
It seems to me that the only possible objection to the presence of such a scheme in this Bill that the Government might raise would be to declare that such a scheme would take time to formulate—time that is not available to them before the Bill receives Royal Assent. However, it seems to us that that objection is not an objection but an excuse. Under my amendment a perfectly workable scheme could be produced within 24 hours and, if the Government are unwilling to produce their own scheme as part of such a transparent process, this amendment should stand.
Indeed, the fact that no detailed scheme for compensation has so far been forthcoming from the appropriate authority suggests that either they are incapable of completing a relatively straightforward task, or else it is not of primary concern to the Government. Perhaps it is not, but it is certainly a priority for the besieged and beleaguered fur farmers whose welfare has consistently been neglected and abused. They deserve, at least, to know unequivocally what provision is to be made for them. I beg to move.
5.15 p.m.
Lord Kimball: The Select Committee on Delegated Powers and Deregulation made a very firm recommendation to this Committee. It said quite definitely that the Committee must consider the question of whether or not compensation should be included for loss of income, which has important human rights applications, and should not be left to ministerial discretion. It therefore recommended the amendment of Clause 5 to make the Government's intention absolutely clear.
That is very important. We know perfectly well that every year the fur farmers make a return of the number of animals which they have in their possession. I have such a return here. The number of animals that they have to return is the number of male animals plus the number of female animals. Thus, you know at the beginning of October exactly how many animals are on the farm. At that moment, the previous year's harvest has been cleared so that in fact you start off at the beginning with your minimum number.
There has already been a case of a fur farm being closed down. It was closed down as the only fur farm in Austria. It is important that people should realise the level at which the fur farmers should be compensated. I am not particularly good at converting currencies but I have been advised that—I am sorry, is the Minister good at this?
Baroness Hayman: It makes a good argument for the euro!
Lord Kimball: It might cost somewhat more in the euro but as it stands at the moment, the price being paid out for every single female mink on a farm should be £390. The mink mink are extremely productive. It must be admitted that the fur farmers have been doing extremely well; and why should they not? They have been running a good business and deserve to be properly compensated for it. I hope, therefore, that we start off by bearing in mind that in respect of the only fur farm to have been abolished within the European area—the man moved over into Czechoslovakia and was able to start again—the farmer received the proper price for his fur farm. I hope that I can add to what my noble friend, Lord Luke has said: that we should put a figure on this question of compensation. That is the figure that we should ask for the farmers.
Lord Davies of Coity: I should certainly like some help with regard to this amendment moved by the noble Lord, Lord Luke. There seems to be no question as to whether the farmers should be compensated but rather how that should be done. I am somewhat bemused about the way in which it is now being proposed that the compensation should be paid. It is a business and is being allied to the land compensation provisions. The noble Lord seemed to say that he saw no difference between compensation in terms of land and that in terms of business and that there should, therefore, be a parallel between the two.
It strikes me that in my lifetime, the value of land has been either fairly constant or it has increased. When it comes, however, to compensating business which is

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more open than land to the whims of the market, the position seems to be inflexible and the two are not parallel. There could be a quite different situation in one fur farm as compared with another and there needs to be a measure of flexibility. I thought the Government were proposing to consider the circumstances with a view to compensating adequately, certainly, but not over-compensating, which might be a difficulty were this formula to be introduced.
Baroness Miller of Chilthorne Domer: At Second Reading, I did mention that for those on the Liberal Democrat Benches, the issue of compensation was now our main concern with the Bill. Clearly, it is imperative that the scheme should be fair, transparent and quick. The noble Lord, Lord Luke, referred to compensation covering prospective income losses. For what length of time into the future does he envisage that that should apply? This would help me to consider his amendment.
Lord Luke: I cannot guess the period into the future on which an actuarial assessment might be made.
Baroness Hayman: I suspect that that interchange illustrates that the simplicity of the amendment moved by the noble Lord, Lord Luke, but the attractiveness of that simplicity belies the difficulty of applying it in practice.
I hope the Committee will accept that throughout the debates on this issue—and it was a central issue in our debate at Second Reading—we have made clear the Government's intention to provide fair and reasonable compensation. However, there is no established practice of compensation in this field, and it is only after proper investigation and consultation that an appropriate and fair scheme can be drawn up.
In the debate at Second Reading, I alluded to the fact that the Government would obviously have serious regard to the recommendation of the Select Committee on Delegated Powers and Deregulation, to which the noble Lord, Lord Kimball, referred. Indeed, if the amendment is not pursued and we deal with the government amendments, I hope the Committee will accept that the Government have tried to make explicit on the face of the Bill that they will ensure that income losses are covered. That was the crux of that recommendation.
The amendment sets out one way of trying to ensure what is an agreed objective; that of providing fair, appropriate and reasonable compensation. I hope the Committee will agree, however, that what the Government recommend will provide a better way of doing this than Amendment No. 19A. Our intention is to look at the books of the fur farmers and at the profits that were described, so that we can then consult the industry on the basis of a compensation scheme which would be fair and reasonable.
The amendment would remove the consultation exercise with industry which is a key element of the Bill and which we inserted after representations from the industry itself. In moving the amendment, the noble
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Lord, Lord Luke, said that it would mean that the compensation scheme would be more transparent. In fact, the amendment in effect would mean that the details of the scheme would be less transparent as they would not be set out in an order. It would be much more difficult for the fur farmers to see the basis of the compensation scheme in order to inform their own decision making.
There would be no speeding up of the payment of compensation moneys through the amendment, and the speed by which this can be done is an issue with the fur farmers, as in practice we would still have to look at individual farmer's books and go through with the consultation exercise which the Bill formalises.
We have made clear that we will be willing to consider payment of interest in the interim. However, the way we suggest of going forward—that is, consulting with the industry and considering issues such as the closing-down costs, valuer's fees, redundancy payment, land clearance costs and interest payments before compensation—will be able to be considered in the framework that is set down in later government amendments.
While I recognise the motivation behind the amendment of the noble Lord, Lord Luke, I hope he will feel able to withdraw it, and perhaps listen to the argument on the government amendment and be reassured that the provisions we are putting into the Bill will cover the areas of concern.
Lord Luke: I am most grateful to the noble Baroness, Lady Hayman, for that explanation. I am also most grateful to my noble friend, Lord Kimball. His desire to have a figure put on the compensation as soon as possible is something the fur farmers would like to hear.
I am a little worried by the noble Baroness, Lady Hayman, saying that all these things are going to happen. I wonder why a certain amount of consultation has not already taken place with the fur farmers as to what their incomes might have been without the Bill going through.
I hope very much that when the Minister deals with her own amendment, she will be able at least to give us some ballpark figure as to how long these fur farmers will have to wait before they obtain compensation after the Bill comes into effect, after which presumably they will not be allowed to continue trading. I hope that perhaps the noble Baroness might be able to give a better answer to the question to me from the noble Baroness, Lady Miller, which I was unable to answer. Having said all that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.30 p.m.
Baroness Hayman Baroness Hayman moved Amendment No. 20:
Page 3, line 16, after second ("of") insert ("income and non-income").
The noble Baroness said: In moving Amendment No. 20 I shall also speak to Amendments Nos. 21, 22, 23 and 25. Perhaps I may say at the outset that I cannot

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guarantee to answer the question posed to the noble Lord, Lord Luke. I have enough difficulty in answering my own questions without taking on the task of answering his as well.
As I said when speaking to Amendment No. 19A, this set of amendments relates to the compensation scheme for fur farmers put out of business by the ban. At Second Reading of the Bill in July, as Members of the Committee will recall, concerns were raised about the proposed compensation scheme. As I explained at the time this is an enabling Bill. It is not appropriate therefore for full and exact details of the compensation scheme to be included in the Bill. The intention is for Ministers to decide on the detail of the compensation scheme after Royal Assent, once we have undertaken a valuation exercise of the fur farms to provide financial information on which a decision may be based.
Indeed there has been no official inspection of fur farmers' books; that in turn awaits Royal Assent. But I can give an assurance that it will happen quickly thereafter. The key to this whole process is to get the Bill onto the statute book and then proceed appropriately with the consultation and the drafting of the scheme.
At present Clause 5 of the Bill does not specify whether or not compensation would include loss of income. That was a cause for concern during Second Reading, and the noble Lord, Lord Kimball, has alluded to it again today. In the light of the concerns that have been raised, and in the light of the report of the Select Committee, the Government have decided to put forward these amendments permitting Ministers to include loss of income in the compensation scheme. Clause 5(1) therefore requires the scheme to cover income and non-income losses incurred as a result of ceasing fur farming because of the enactment or coming into force of the prohibition in Clause 1.
Subsection (1)(a) requires the scheme to specify the descriptions of income and non-income losses in respect of which payments are to be made, although the scheme need not provide for all such losses to be compensated.
Clause 5(2) goes on to provide that the scheme shall specify the basis of the valuation for determining losses; the amounts of the payments to be made or the basis on which such amounts are to be calculated; and the procedure to be followed in respect of claims under the scheme.
Concerns were raised in another place that the use of the word "may" in Clause 5(2) could theoretically allow the Government to avoid including these matters in the compensation scheme. This was never our intention, as I made clear, but in drafting these amendments in order to remove any doubt at all as to the Government's commitment, we are proposing to change the word "may" to "shall" in line 20.
The full details of the scheme would be subject to a consultation exercise with the industry after Royal Assent and before the order introducing the compensation scheme is made. I hope that Members of
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the Committee will feel that we have genuinely moved to meet the concerns that were expressed. On that basis I ask them to support these amendments. I beg to move.
The Earl of Shrewsbury: I am grateful to the noble Baroness for tabling this government amendment. No doubt she recalls that a number of noble Lords who spoke at Second Reading made it abundantly clear that the big issue was that if a ban was to be implemented, an adequate and fair compensation should be made both for the loss of income as well as other losses. What she had to say in the last few minutes is most welcome.
The Government's new position as stated in this amendment is to be welcomed, as I said. But I wonder if I could press the Minister on three issues very briefly. First, is the noble Baroness able to indicate where the Government intend to draw the line between losses that would be claimable and those that would not? Secondly, the noble Baroness will be aware that, in compulsory purchase situations, 90 per cent of the compensation is payable up front, on account. Is it the Government's intention to pay compensation? If so, will they consider paying compensation to fur farmers on the same basis as that paid in compulsory purchase situations? It would help their cash flow enormously.
Finally, within the compensation arrangements, will the Government include the reimbursement of the claimant's reasonable professional fees and charges involved in settling their claim for compensation? I believe that to be an important point and that it is only fair that such reimbursement be taken on board by the Government. It is a normal set of circumstances in virtually all other compensation situations.
Finally, Clause 5(5) says,
"The dispute shall be referred by the appropriate authority to, and determined by, the Lands Tribunal".
Is it not the case that the Lands Tribunal could take an inordinate amount of time to process this particular dispute? Would it not be better—as happens in the case of property disputes—if all else fails, for the arbiter to be the president of the Institute of Chartered Surveyors? Its experience is very widespread. Perhaps the noble Baroness could consider that.
Lord Monson: One understands perfectly that the noble Baroness cannot possibly give us the precise figure or even an approximate figure for the cost of the Government's compensation scheme. But her department must surely have produced some guesstimates as to the highest and lowest possible cost. Are we talking about a seven digit sum, or an eight or nine digit one? I wonder if she could give us some indication.
Baroness Miller of Chilthorne Domer: Can the Minister give me some indication of the length of time under her scheme for which income losses would be paid? Would it be until the person could reasonably set up another business? What would happen if they were virtually of retiring age? What sort of criteria will the

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Government set for how long that income should be paid? And will it he able to take account of personal circumstances such as approaching retirement age?
Earl Ferrers: Perhaps I can underline that, because it was a question that I was going to ask the noble Baroness. It is a very important factor. If compensation is going to be given and it is going to be given for loss of earnings, obviously it makes a difference whether the person is to receive loss of earnings for one year and then be left on his own, or whether it will be for three, four or even 10 years. That is important. Whatever figure the Government arrive at is a very important one.
The only thing that worries me—and I think it worries one or two other people—is that this Bill was considered way back in July and it is now half-way through October. One wonders why these discussions have not begun before now so that the Government had some kind of idea as to what they propose. The noble Baroness said that the decision would be made after Royal Assent. I find that rather curious. I quite perceive that we cannot put on the face of the Bill exactly what the figures are going to be. But people should know before this Bill goes through—a Bill which deprives them of their rights—whether they are going to receive one kind of compensation or another. It is important that they know. I hope that the noble Baroness, Lady Hayman, will be able to find ways of concluding those discussions before Royal Assent even if they do not appear on the face of the Bill.
Lord Davies of Coity: Discussions certainly have to take place. The Minister has indicated that discussions will take place with the farmers' union and with representatives from the fur industry. However, we may be in danger of locking ourselves into another inflexible position when we talk about compensation for future years. I would rather like to think that the compensation will not be an ongoing payment as though these people will never work or do anything again, but that it will assist in building an alternative business which might be as profitable as the previous one. Those areas are more fruitful to consider than saying that an amount of money must be paid because those concerned will never do anything else again.
Earl Ferrers: I agree with the noble Lord, Lord Davies of Coity. It would be wrong if a certain sum were suggested and then there were to be annual payments or whatever. There should be one big payment to cover however many years it concerns. The amount of years ought to be known in advance.
Baroness Hayman: The noble Lord, Lord Monson, asked me to make a guesstimate of costs. I am always nervous about doing so, but if he looks at the explanatory notes to the Bill he will see that a preliminary assessment in paragaraph 26 puts the costs to the Government up to £400,000 for loss of assets, and up to four times that for income, but it would be subject to the valuation exercise.
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In the debate we come back to something of a circular argument around the valuation of assets, something that we have not been able to do up until now. It would need the consent of the fur farmers and would be very much in their interests. We intend that to happen very quickly after Royal Assent.
In Amendment No. 20 we have gone as far as we can to ensure that we include loss of income in the compensation scheme. However, the detailed issues raised by noble Lords and the noble Baroness, Lady Miller, about the period over which the income compensation should apply and whether there should be some cap on it if someone was near retirement age, are the very issues that we will need to consider in detail as part of the consultation exercise.
At the moment, we do not know how we will measure income loss as we need to visit the fur farmers to look at their books, but we have in mind concepts such as the loss of trading and profits. Details will be established later. However, in addition to loss of income, compensation will be paid where assets cease to have a use and investment cannot be recouped by sale. The principal assets of fur farming are the land, buildings and equipment, breeding stock and young stock for slaughter. No compensation should be required for the land—that would have alternative uses—but compensation may be required for buildings and equipment which do not have alternative usage. Compensation may be required for wastage of some livestock over a winding-down period of two to three years.
I say to the noble Earl, Lord Shrewsbury, that compensation will also be considered for miscellaneous closing-down costs such as the valuer's fees, redundancy payments, land clearance costs and interest payments before compensation is paid. Those are all issues that the farmers will want to debate in order to influence the shape of the scheme.
Disputes over compensation claims—because we all know that this cannot be ruled out in these circumstances—could be settled by the Lands Tribunal. However, I should tell the noble Earl that they could also be settled by arbitration. The Bill clearly provides for that and the arbiter could be a person appointed by the president of the RICS if that was what the parties agreed. In the interests of putting the case clearly, however, arbitration can sometimes be just as slow as a decision by the Lands Tribunal. It is not an absolute guarantee that there will he a quicker answer and the parties have to pay the arbitrator in those circumstances. However, the Bill is even-handed here and allows for that possibility, if that is a possibility that Members of the Committee would prefer.
I am sorry that I have not been able to be more specific. I hope that I have laid down as clearly as possible the framework and the areas in which we shall be looking to put flesh on the bones of the scheme. But I do not believe that we can undertake that exercise until we have the bones; namely, achieving Royal Assent for the Bill. On that basis, I hope the Committee will support these amendments.
5.45 p.m.
Earl of Shrewsbury: Before the noble Baroness sits down, I wonder whether she could give me some guidance on the question I asked her about on-account payments of compensation, and whether she would be prepared to look at that issue. It is a fairly common occurrence in these matters.
Earl Ferrers: I just want to ask a couple of questions. The noble Baroness has been very helpful and she has given a description of what is expected and what is proposed. However, I cannot quite understand the mystique of Royal Assent. The noble Baroness said that all this can be done very quickly once the Bill receives Royal Assent. If that is so, one wonders why it cannot be done in advance of that so that we may have some idea of what is going to happen. One has a horrible feeling that, once Royal Assent is over and this becomes law, the Government may not be quite so flexible and open. After all, the Government have the Freedom of Information Bill going through this House. The fur farmers are to lose their livelihood. Why can they not know what sort of compensation they are likely to receive?
Baroness Hayman: In responding to the issue raised by the noble Earl, Lord Shrewsbury, on payments on account, we shall certainly consider that as one of the elements of the scheme. However, he will understand that I cannot give him an absolute commitment any more than I can on any other element.
It would be possible to start consultation from now onwards as, indeed, it is possible to start consultation after Second Reading. If this Session is not going to be that long, there will be something of a distinction without a difference here in terms of the timing. Certainly, I give the Committee the assurance that I shall consult fellow Ministers about the appropriate date on which consultations and investigations as to income levels should properly start, with a commitment that there will not be undue delay in doing that. I hope the Committee will accept that assurance.
Earl Ferrers: I am grateful to the noble Baroness for that undertaking which will be of great help and succour.
On Question, amendment agreed to.
Baroness Hayman Baroness Hayman moved Amendments Nos. 21 to 23:
Page 3, line 20, leave out from ("scheme") to ("of") in line 22 and insert ("shall, in particular, specify—

(a) the description or descriptions of income losses and the description or descriptions of non-income losses in respect of which payments are to be made, and

(b) the description or descriptions of businesses in respect of which payments are to be made,

but need not provide for the making of payments in respect of all income losses or all non-income losses or (as the case may be) in respect of all businesses.
( ) A scheme shall also, in particular—
( ) specify the basis or bases").

Page 3, line 24, after ("basis") insert ("or bases").Page 3, line 26, leave out ("any") and insert ("the").
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Page 3, line 26, leave out ("any") and insert ("the").
On Question, amendments agreed to.
[Amendments Nos. 23A to 23D not moved.]
Earl Ferrers Earl Ferrers moved Amendment No. 24:
Page 3, line 44, leave out from ("shall") to ("House") and insert ("not be made unless a draft of it has been laid before, and approved by resolution of, each").
The noble Earl said: This is a simple amendment suggesting that the draft of the scheme should have affirmative as opposed to negative approval. I hope the Government will agree to that.
Perhaps I may just recap because I said something nonsensical. I said that the measure should have affirmative as opposed to negative approval. Of course, you cannot have negative approval. I meant that it should be subject to the affirmative as opposed to the negative resolution procedure.
Baroness Hayman: I am grateful to the noble Earl for that clarification. I got his drift anyway. A matter of judgment arises. We have proposed the negative resolution procedure and as I understand it, that was not questioned by the Delegated Powers and Deregulation Committee. It considered that a negative resolution procedure was not inappropriate.
The reasoning behind that is that the detail of the compensation scheme will be subject to a consultation exercise with the industry but others may become involved in that. So it is not a matter on which there will be no opportunity whatever for debate. Obviously the negative resolution procedure gives some advantage in terms of speediness of parliamentary process. It is a judgment call, but the judgment was made. We have very clear mechanisms for consultation and the procedure proposed was not considered to be inappropriate by the Delegated Powers and Deregulation Committee in order to deal speedily with those matters.
Earl Ferrers: I am grateful to the noble Baroness for that. It did not come as a surprise. The funny thing is that when one is in government, the opposition are always suggesting that the negative procedure changed to affirmative resolution, and the government always object because they think it is a waste of time. However there are methods of discussing this under a negative resolution. I had hoped that we should have the affirmative procedure, but the noble Baroness says no and I shall submit entirely to what she has said.
Amendment, by leave, withdrawn.
Baroness Hayman Baroness Hayman moved Amendment No. 25:
Page 3, line 45, at end insert —
("( ) In this section—

"income losses" means losses of income, and

"non-income losses" means losses other than income losses.").

On Question, amendment agreed to.
Clause 5, as amended, agreed to.
Clause 6 agreed to.
Clause 7 [Short title, commencement and extent]:
Lord Kimball Lord Kimball moved Amendment No. 26:
Page 4, line 9, leave out from ("force") to end of line and insert ("on the day on which the Act is passed").
The noble Lord said: We have made great progress in the last three-quarters of an hour and I am quite certain that fur farmers as a whole have heard many things from the noble Baroness that set their minds at rest. However, on this final point, perhaps I may press her on one more issue. In Committee in another place the Minister said at col. 81 that he took the point that some fur farmers may want to get out of the business as quickly as possible. I understand that point.
He then went on to say that the compensation scheme should be introduced as quickly as possible in order to assist those people who wanted to get out of the industry. He went on to say further that it might take a couple of months to get the draft consultation up and running, and then there would have to be a further two month consultation period followed by another month for internal consultation.
Given the extensive delays brought about by the passing of this legislation, and the fact that the fur farmers have been unable to make any progress with altering their equipment since March 1999, there seems no reason why the Government should not make a compensation payment immediately after Royal Assent. The passing of my amendment would allow the ministry to commence consultation immediately after Royal Assent. If we play it the other way, it will take two months and then another month instead of being able to deal with the issue straight after Royal Assent. I beg to move.
Baroness Hayman: I am grateful for the spirit in which the noble Lord, Lord Kimball, moved this amendment. I have to say to him that it is conventional—and my heart sinks when I start an argument along those lines— in general, no Act should be brought into operation sooner than two months after Royal Assent. It is particularly desirable that the minimum period be observed in respect of provisions that will directly affect the public. However, we can respect that propriety without unnecessarily delaying the course of the exercise, which is probably the intention behind the noble Lord's amendment.
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If the Bill were to receive Royal Assent, as I hope it soon will, I am well aware that there are some farmers who might wish to cease their businesses very shortly after that date. I can assure the Committee that the "two month" provision will have no effect on the eligibility of fur farmers for compensation if they were to close down during that two-month period.
Clause 5(1) makes clear that the compensation scheme will apply to those ceasing their businesses after enactment—that means after Royal Assent rather than after the Bill coming into force. I recognise also that farmers will then want to receive their compensation as soon as possible. I can assure Members of the Committee that the Government will move on this matter as fast as possible. Discussion took place earlier in the deliberations of the Committee as to whether we could do that a little more speedily. Moreover, we shall certainly not wait for the conventional two months before commencing the task of drawing up the compensation scheme.
We are proposing to use professional valuers and accountants to assess the assets and income of the fur farmers to assist us in drawing up the scheme. We will then consult those affected by the Bill on its detail. That is usually done, as the noble Lord said, over a two-month period. There is a balance to be struck here between adequate consultation and speedy implementation. We have to do both: we have to consider the responses to the consultation exercise and then draw up a statutory instrument to be laid before Parliament. It would be wrong to suggest that that will not take time. But I hope that the two months between Royal Assent and the bringing into force of the Bill will not in any way add to the amount of time necessary to put the scheme in place and compensation being paid. On that basis, I hope the noble Lord will feel able to withdraw his amendment.
Lord Kimball: In view of the way the noble Baroness has been able to set the fur farmers' minds at rest, I have much pleasure in saying, I beg leave to withdraw the mendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
Title agreed to.
Bill reported with amendments.
The Committee adjourned at six o'clock.

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