§ (" . 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 887 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".888 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, 889 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 aperson 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 informationwith the phrase,Facilitate the disclosure of informationbecause 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 891 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".892 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 893 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 894 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: 895The 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.
896 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.
§ 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,
Those are the purposes referred to in the proposed purpose clause put forward in the third amendment in this group.
- "(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".
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.
898 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 899 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 900 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 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 901 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 902 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 903 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 904 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 905 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 906 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 907 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.
908 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 909 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.
910 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.
911 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 912 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 moved Amendment No. 5:
Page 1, line 21, leave out subsections (4) and (5).
§ On Question, amendment agreed to.
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 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 moved Amendment No. 9:
After Clause 1, insert the following new clause—